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2016 (9) TMI 377 - CESTAT MUMBAI

2016 (9) TMI 377 - CESTAT MUMBAI - 2016 (46) S.T.R. 858 (Tri. - Mumbai) - Rejection of refund claim - Rule 5 of CCR, 2004 - Notification No. 27/12-CE(N.T.) dated 18/6/2012 – input services – export of output services - realization of foreign convertible currency - Section 11B of the Act - whether export turnover shall include the receipt of foreign convertible currency as per the FIRC during the particular quarter or as per the date of invoice? – Held that: - as per the FIRC the payment in conve .....

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ner Central Excise (Appeals), Bangalore[2009 (6) TMI 447 - CESTAT, BANGALORE] and CCE & ST, LTU, Bangalore Vs Micro Labs Ltd.[2011 (6) TMI 115 - KARNATAKA HIGH COURT] followed – these services considered as input service - Cenvat credit is admissible on these services. - Rent-a-cab services - Refund availed in excess - Telecommunication/Internet Telecommunication Service - Chartered Accountant’s Service – Held that: - assesse not entitled to refund. - Period of limitation - whether limit .....

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sessee has filed refund claim within one year from end of the quarter therefore it is within limitation – refund not time bar. - Matter remanded to original adjudicating authority for computation of refund – appeal disposed off. - ST/85446, 85447/15, ST/85612 & 86211/15 - A/89239-89242/16/SMB, S/89243/16/SMB - Dated:- 18-8-2016 - Mr. Ramesh Nair, Member (Judicial) Shri. Mihir Deshmukh, Advocate for the Appellants Shri. Syamlal Karoliya, Asstt. Commissioner(A.R.) for the Respondent ORDER Th .....

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period July- September, 2012 and for ₹ 6,12,128/- on 31/12/2013 for the period October-December, 31/12/2013 under Rule 5 of CCR, 2004 read with Notification No. 27/12-CE(N.T.) dated 18/6/2012 in respect of service tax paid on various input service used for providing output service which were exported. The adjudicating authority rejected all the claims on the ground that latest FIRC is dated 17/4/2012 whereas refund claim was filed on 28/6/2013. Since the date of realization of foreign con .....

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der of the Adjudicating authority, assessee filed appeal before the Commissioner(Appeals), who also rejected the refund claim of ₹ 8,08,569/- on the ground that the export turnover for the period April to June 2012 should be taken as per the date of invoice accordingly the exports claimed by the assessee does not fall under the period April-June 2012. It was also upheld by the Ld. Commissioner that Cenvat credit of ₹ 2,29,489/- in respect of Event Management Services, Rent-a-Cab Sche .....

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ice. Being aggrieved by order-in-original assessee filed two appeals bearing No. ST/85446 & 85447/15. Department also filed two appeals, first appeal bearing No. ST/86211/15 against Order-in-Appeal dated 9/2/2015 where under refund of ₹ 5,59,412/- was also rejected vide Order-in-Original dated 31/7/2014 and second appeal bearing No. ST/85612/15 against Order-in-Appeal No. 11/11/2014 whereunder out of the refund claim filed for ₹ 9,77,895/-, which was rejected, the first appellate .....

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ted the refund on the ground that in the formula provided for calculation of refund amount as per Rule 5, the term export turnover should be taken as per the date of invoice. He submits that incase of export service the export is considered on the date of receipt of convertible foreign exchange that is date of FIRC. He submits that in the entire refund of ₹ 8,08,569/-, the date of FIRCs are during the period April - June, 2012 therefore amount of export as per the FIRC should be taken as e .....

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d insurance auxiliary services as both the services are directly related to providing of output services, he concede that Cenvat credit is not admissible on rent a cab scheme operator s service and excess credit availed on telecommunication internet and C.A. Service. 3.3 Regarding the departmental appeal, he submits that department filed appeal on the ground that refund is time bar for the reason that Commissioner(Appeals) considered the last date of quarter for computing one year, whereas perio .....

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f one year for filing the refund claim should be taken from end of the quarter therefore refund is not time bar. 4. Shri. Shyamlal Karoliya, Ld. Asstt. Commissioner(A.R.) appearing on behalf of the Revenue, as regard the assesee s appeals are concern he reiterates the findings of the impugned order. He further submits that Ld. Commissioner(Appeals) has rightly denied the Cenvat credit in respect of Event management services and insurance auxiliary services as the same are not used in the providi .....

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of export therefore refund is time bar. 5. We have carefully considered the submissions made by both sides and perused the record. 6. From the overall case, issues to be decided by me arises as under: (a) Regarding the refund under Rule 5 read with Notification No. 27/12-CE(N.T.)whether export turnover shall include the receipt of foreign convertible currency as per the FIRC during the particular quarter or as per the date of invoice. (b) Whether the Cenvat credit is admissible in respect of ev .....

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of undertaking, or a service provider who provides an output service which is exported without payment of service tax, shall be allowed refund of CENVAT credit as determined by the following formula subject to procedure, safeguards, conditions and limitations, as may be specified by the Board by notification in the Official Gazette : Refund amount = (Export turnover of goods + Export turnover of services) x Net CENVAT credit Total turnover Where, - (A) - (B) - (C) - (D) Export turnover of servi .....

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le 5(1) for export turnover of services, one of the element is payment received during the relevant period for export services. In the present case as per the FIRC the payment in convertible foreign currency was received during the relevant quarter therefore the same should be considered as export turnover during the relevant quarter only. There is no provision in the definition of turnover of services that the export turnover should be taken as per the date of invoice. Therefore the contention .....

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sidered as input service therefore Cenvat credit is admissible on these services. The relevant judgments are as under: Event Management Services 1. Dell International Services India (P.) Ltd. Vs. Commissioner Central Excise (Appeals), Bangalore 2010 (17) S.T.R. 540 (Tri. - Bang.) 2. Castrol India Limited Versus Commissioner Of Central Excise, Vapi [2013 (291) E.L.T. 469 (Tri. - Ahmd.)] 3. J.P. Morgan Services (i) pvt. Ltd. Versus Commissioner of S.T., Mumbai [2016 (42) S.T.R. 196 (Tri.-Mumbai) G .....

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