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M/s. Indago Versus Commissioner of Service Tax, Pune

2016 (5) TMI 901 - CESTAT MUMBAI

Eligibility of refund claim - Rule 5 of Cenvat Credit Rules, 2004 - period April 2012 to June 2012 - time barred - Refund claim rejected by interpreting the amended provision as per Notification No. 18/2012-CE(NT) dated 17.03.2012, as though the FIRC received in the month of April 2012, the export has to be considered in the month of March 2012, hence there is no export during the quarter from April 2012 to June 2012. - Held that:- it was not open for the Commissioner (Appeals) to go into th .....

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is found that refund of the appellant being filed within 1 year from the quarter ending is within time limit, hence they are entitled for the refund. - Decided in favour of appellant - Appeal No. ST/85313/2015 - Order No. A/86784/16/SMB - Dated:- 22-3-2016 - SHRI RAMESH NAIR, MEMBER (JUDICIAL) For the Petitioner : Shri Sagar Shah, C.A. with Shri R. Khairnar Advocate For the Respondent : Shri B.Kumar Iyer, Supdt. (A.R) ORDER The appeal is directed against Order-in-Appeal No. PUN-EXCUS-003-APP-096 .....

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7; 1,41,618/- and rejected the refund of ₹ 92,363/, on the ground: (a) invoices towards Cenvat credit of ₹ 2093/- was raised on address which is not registered address. (b) FIRC No. 1380499 for ₹ 11,00,335/- was received on 13.4.2012 and refund was filed on 8.5.2013 which is beyond 1 year, hence, proportionate refund in respect of this FIRC was held to be time barred and the refund of ₹ 90,270/- on this count was rejected. The appellant being aggrieved by the Order-in-Ori .....

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2012, hence the appellant is not entitled for the refund. Being aggrieved by the impugned order the appellant is before me. 3. Shri Sagar Shah, Ld. Chartered Accountant appearing for the appellant submits that in the present case the adjudicating authority has not issued any show cause notice in respect of refund rejected by the Order-in-Original. In the Order-in-Original, the refund was rejected only on the ground of time bar. However, in the impugned order, the Ld. Commissioner (Appeals) categ .....

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that the FIRC related to the refund of ₹ 90,270/- was received by the appellant on 13.4.2012, therefore the export was completed in April 2012. In terms of export of service Rules, therefore the refund of the said amount falls within the quarter April 2012 to June 2012. In view of this fact, the Ld. Commissioner (Appeals) has wrongly held that there is no export during the quarter April, 2012 to June, 2012. He also submits that since the appellant have exported their 100% services, theref .....

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Iyer Ld. Supdt. (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. 5. I have carefully considered the submissions made by both the sides. I find that the refund under Rule 5 was rejected by the adjudicating authority only on the ground of time bar, for the reason that the FIRC was received on 13.4.2012 and from that date refund claim was filed after 1 year on 8.5.2013, therefore it is time barred. In the appeal of the appellant before the Commissioner (Appea .....

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