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Oceans Connect India Pvt Ltd Versus CCE Pune-III

2016 (9) TMI 377 - CESTAT 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 convertible foreign currency was received during the relevant quarter therefore .....

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RE] 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 limitation of one year should be reckoned from the date of FIRC or from the end .....

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efore 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 These four appeals are directed against Orders-in- Appeal No. PUN-EXCUS-003- .....

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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 convertible currency is considered as date of export therefore from the date .....

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sioner(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 Scheme Operators Services, Insurance Auxiliary Services are not admissible in .....

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ng 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 authority has allowed the refund of ₹ 8,60,629/- . 3. Shri. Mihir D .....

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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 exports turnover, therefore refund should not have been rejected in this ca .....

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o 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 period of one year should be calculated from the date of exports, he submits th .....

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rter 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 providing output service. As regard the rent-a-cab service the same was excluded .....

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he 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 event management service, insurance auxiliary service, rent a cab service, f .....

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h 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 services means the value of the export service calculated in the following mann .....

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eived 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 of the Ld. Commissioner(Appeals) is not sustainable and the refund has to .....

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rvices. 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) Group Medical Insurance Services 1. H.E.G. LTD. Versus COMMISSIONER OF C. E .....

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