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2016 (3) TMI 1049 - CESTAT MUMBAI

2016 (3) TMI 1049 - CESTAT MUMBAI - 2016 (42) S.T.R. 760 (Tri. - Mumbai) - Application of time-limit of Section 11B of Service Tax Act, 1994 - Rejection of refund claim of Cenvat Credit lying unutilized during the July to September, 2012 - Rule 5 of Cenvat Credit rules 2004 (CCR) read with notification no. 27/2012-CE (NT) - Export of "Consulting Engineering Services" to their customers situated outside India - Appellant exported entire services and in order to render said services taken the cred .....

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g which services were exported. Therefore, the finding recorded by the first appellate authority on this point is correct and does not require any in curtains. - Decided against the revenue - APPEAL No. ST/85128/15-MUM, ST/CO/91061/15-Mum - Final Order Nos. A/85103-85104/2016-WZB/SMB - Dated:- 1-1-2016 - M. V. Ravindran, Member (J) Foe the Appellant : Shri A.B. Kulgod, Assistant Commissioner (AR) For the Respondent : Shri Amit Agarwal, Consultant ORDER Per M. V. Ravindran This appeal is filed by .....

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00/- while sanctioning an amount of ₹ 50,33,083/-. Aggrieved by such an order an appeal was preferred before the first appellate authority. The first appellate authority allowed the appeal of the assessee and sanctioned the refund claim to further extent of ₹ 29,79,038/-. Revenue is aggrieved by such an order and they are before the tribunal. At the outset, the cross objection which is filed being in support of order-in-appeal, is disposed of. 3. Learned departmental representative a .....

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l Excise Act, 1944. It is also his submission that filing of the refund claim under rule 5 also to needs to read with limitation as prescribed under provisions of section 11B of the Central Excise Act, 1944; would mean that in this case assessee has filed two refund claim beyond one year and the findings that there is curtailment of period as has been recorded by the first appellate authority is erroneous. It is his further submission that the claim in this appeal having been filed beyond time l .....

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that the judgment of the tribunal in the case of Bechtel India Pvt. Ltd. 2014 (34) S.T.R. 437, records about non applicability of section 11B of the Central Excise Act 1944. He produces a statement along with copy of details of export made, FIRCS and indicates that these have been considered by the first appellate authority while passing the impugned order. 5. I have considered the submissions made at length by both sides and perused the records. The issue in brief is the appellant herein is ex .....

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e facts respondent assessee is provider of these services any for export, the services, he is also eligible for refund of the Cenvat Credit which remains unutilized. 6. The first appellate authority in the impugned order has held that the claim of refund of the respondent assessee needs to allowed. I find that the first appellate authority has considered the entire issue in its correct perspective while allowing the appeal filed before him. I reproduce the relevant findings. "14. As per the .....

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relevant quarter and for which advance payment was received. This definition specifically excludes those services whose advance payment is received during the relevant quarter, but which are yet to be provided completely. By virtue of the provision in the new Rule 5 that the amended provisions shall apply to export made on or after the 1 st April, 2012, the export of services made before 01-04-2012 but payments received after introduction of new Rule 5 of the CCR. Secondly, by virtue of the fir .....

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ed from the purview of new Rule 5 as per sub-rule (2). Further such services where required to be considered for Export Turnover of the given period when such services were provided in terms of erstwhile Notification No. 5/2006-CE(N.T.) and erstwhile Rule 5 of the CCR in as much as this Notification defines the export turnover as sum total of value of output services exported during the given period. Similarly, advance payments received before 01-04-2012 but services exported after 01-04-2012 sh .....

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ere is synergy between the provisions of earlier Notification 05/2006-CE (N.T.) and the new Notification No. 272012-CE (N.T.) 15. Applying the provisions described in Para 14 above on the present case, and on going through the reconciliation statement giving correlation of FIRCs of the relevant quarter July to September 2012 with the corresponding invoices for calculating export turnover of services' as below: (a)Against which the payments received during the relevant quarter for the service .....

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for April, 12 & May, 12 5 27.9.12 116309 27.9.12 11027100 Part receipt for May, 12 As explained in para 14 above, the said payments totaling ₹ 4,86,32,973/- are required to be included in the Export Turnover of services' as per clause (D) of Rule 5(1) of the CCR. Thus, I find that the Export Turnover of services' is ₹ 4,86,32,973/- (Rs. NIL + ₹ 4,86,32,973/-). The Appellant have calculated the Export Turnover of services' at ₹ 9,57,65,100/- which is found .....

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, 12 4 17.8.12 114892 17.8.12 8631127 Part receipt of Mar, 12 However, the above payments totaling 4,71,32,127/- are not eligible for inclusion in the Export Turnover off services' as per clause (D) of Rule 5(1) of the CCR. 17. Further, it is also clear from the figures mentioned in the Order-In-Original that the appellant had exported their entire turnover and had not provided any other services, including in the domestic Tariff Area, during the relevant period. Therefore, the Export Turnov .....

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