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2016 (11) TMI 874 - CESTAT MUMBAI

2016 (11) TMI 874 - CESTAT MUMBAI - TMI - Whether the turnover in respect of services provided/exported prior to 1.4.2012 should be deducted from the export turnover as well as total turnover for arriving at the ratio for eligible refund under Rule 5 of the Cenvat Credit Rules 2004? - Held that: - The amended rule is applicable only for the exports taken place on or after 1st April 2012. The Ld. Commissioner has deducted the value of 10 invoices from the export turnover as well as from the total .....

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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 provided under Section 11B. The Ld. Commissioner has rightly held that the refund is .....

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Supdt. (A.R.) for Appellant Shri Prasad Paranjpe, Advocate for respondent Order The appeal is directed against Order-in-Appeal No.PUN-EXCUS-003-APP-365-13-14 dt.13.02.2014 passed by the Commissioner (Appeals) Central Excise, Pune-III whereby the Ld. Commissioner has allowed the appeal filed against Order-in-Original No.R/459/STC/PIII/2013 dt. 23.09.2013. 2. The issue to be decided by me is- (i) Whether the turnover in respect of services provided/exported prior to 1.4.2012 should be deducted fr .....

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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 Commissione .....

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012. Therefore exports in respect of 10 invoices should be considered as export for the quarter April 2012 to June 2012. Therefore, the same could not have been deducted from the export turnover, thus the Ld. Commissioner has made an error. As regard time bar, he submits that as per Section 11B refund claim should be filed before the expiry of 1 year and there is no exception provided under Section 11B, whether the claim is required to be filed monthly or quarterly. Therefore the period of 1 yea .....

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ion 1 to Rule 5 of the Cenvat Credit Rules. Accordingly, irrespective of the date of receipt of consideration, the services provided/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 t .....

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As regard limitation aspect, he submits that since the consideration is received on 9.4.2012 and the refund is filed on 26.04.2013, the same was filed within 1 year from the quarter end i.e. 30.6.2012. He further submits that it is the condition in the Notification that one single claim for each quarter is required to be filed. Therefore the period of refund shall end on 30.6.2012 and from that day 1 year is available for filing the refund, therefore the refund is well within the time. 5. I have .....

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.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. As regard limitation, 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 .....

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relevant findings are reproduced below: 16. Applying the provisions described in Para 15 above on the present case, I find that the Appellant have included 10 invoices, viz. Invoice No. 011/2011-12 dated 29.02.2012, 012/2011-12 dated 31.03.2012, 001PPT/2011-12 dated 31-08-2011, 002PPT/2011-12 dated 30.09.2011, 003PPT/2011-12 dated 31-10-2011, 004PPT/2011-12 dated 30-11-2011, 005PPT/2011-12 dated 31-12-2011, 006PPT/2011-12 dated 31-01-2012, 007PPT/2011-12 dated 29-02-2012 and 008PPT/2011-12 date .....

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for the quarter of April 2012 to June 2012, by virtue of new Rule 5(2) of the CCR read with clause (1) of Explanation 1 given under new Rule 5 of the CCR. This being a categorical statutory provision, it will prevail over any possible interpretation. For calculating export turnover of the services and total turnover of services for the relevant quarter of April to June 2012, only those services which were exported between 01.04.2012 and 30.06.2012 need to be considered and the same is calculated .....

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