TMI Blog2016 (11) TMI 874X X X X Extracts X X X X X X X X Extracts X X X X ..... y on the export made prior to 1.4.2012. Therefore in my considered view the Ld. Commissioner has rightly deducted the value of 10 invoices pertaining the period prior to 1.4.2012 from export turnover as well as total turnover for the period April - June 2012. Limitation bar - Held that: - when in the Notification issued under Rule 5 it is a condition that the assessee has to file refund only once in a quarter. Accordingly, he is not allowed to file refund before quarter is completed, in that case, the relevant date for computing 1 year for the purpose of Section 11B shall be from 30.6.2012. In the present case, the respondent filed refund claim on 26.4.2012 i.e. within 1 year from 30.6.2012, hence the same is clearly within 1 year as pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that in respect of 10 invoices, for the services provided for export is prior to 1.4.2012. Since the payment was received on 9.4.2012 and the refund was filed on 26.4.2013, the turnover pertaining to the said 10 invoices was deducted from the export turnover while retaining the same turnover in the total turnover and accordingly rejected the refund of ₹ 40,13,163/-. The adjudicating authority also held that since the refund was filed beyond 1 year for the date of receipt of foreign exchange, the same is time barred. Aggrieved by the Order-in-Original the respondent filed appeal before the Commissioner (Appeals), the Commissioner (Appeals) on both the counts allowed the appeal of the respondent. Aggrieved by the impugned order, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided/exported prior to 1.4.2012 will not be governed by new Rule 5 of the CCR read with Notification No.27/2012 CE(NT) dated 18.06.2012. He submits that the present refund is for the period April-June 2012 which is filed under new Rule 5 of CCR . Accordingly, the Ld. Commissioner (Appeals) has rightly held that the turnover with respect to the 10 invoices which is for the export of service prior to 1.4.2012 should not be considered for granting refund for the period April -June 2012 as the said invoices specifically stand excluded due unamended Rule 5(2) of Cenvat Credit Rules. Therefore, the Ld. Commissioner (Appeals) rightly ignored turnover of these invoices from the export turnover as well as total turnover. In this support, he placed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Accordingly, he is not allowed to file refund before quarter is completed, in that case, the relevant date for computing 1 year for the purpose of Section 11B shall be from 30.6.2012. In the present case, the respondent filed refund claim on 26.4.2012 i.e. within 1 year from 30.6.2012, hence the same is clearly within 1 year as provided under Section 11B. The Ld. Commissioner has rightly held that the refund is within the stipulated time period of 1 year. On both the counts, Ld. Commissioner (Appeals) has given detail finding interpreting the pre-amended and post amended Rule 5 in the notification issued there under the relevant findings are reproduced below: 16. Applying the provisions described in Para 15 above on the present case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had exported their entire turnover and had not provided any services to Domestic Tariff Area in the relevant period. Therefore, the export turnover would be equal to the total turnover , in terms of clause (E) of Rule 5 (1) of the CCR. 17. In view of the above discussion, I find that the admissible refund amount needs to be re-calculated. The same is done as under: Export turnover of services = 1,32,78,343/- Total Turnover=1,32,78,343/- Net CENVAT Credit=48,63,911/- Refund amount = Export turnover of services X Net CENVAT Credit Total turnover 1,32,78,343 X 48,63,911 1,32,78,343 = 48,63,911/- Since r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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