TMI Blog2017 (4) TMI 1132X X X X Extracts X X X X X X X X Extracts X X X X ..... through legal and accepted channels of remittances including by NEFT, received during a particular quarter even though related to invoices issued or export services provided for the period prior to that quarter, will definitely required to be included in the export turnover of services for that quarter. Matter is remanded back to the original authority for the limited purpose of re-quantification of the export turnover and resultant revision in quantum of refund of cenvat credit under Rule 5 ibid - appeal allowed in part and part matter on remand. - ST/40568 to 40571/2016 - 40633-40636/2017 - Dated:- 31-3-2017 - Shri Madhu Mohan Damodhar, Member (Technical) Shri Rabeen Jayaram, Advocate For the Appellant Shri B. Balamurugan, AC (AR) For the Respondent ORDER Issues involved in all these appeals are common emanating from common impugned order and hence they have been taken up together for disposal. 2. The brief facts of the case are that appellant are providing Online Information and Database access/retrieval service and Renting of Immovable Property services. They had filed refund claims under Rule 5 of the Cenvat Credit Rules, 2004 being the unutilized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to Mr. Aditya Mirza, Director of The Company ₹ 235/- 2. Insurance-Rs.2086/- 3. Membership-Rs.11,000/- 4. Meal pass-Rs.368/- 5. Car Maintenance-Rs.566/- Rs.1,94,02,792/- Rs.1,50,25,160 Rs.43,77,632/- FIRC received during the quarter but prior to 21.06.2012 ST/40569/2016 July 2013 to Sep `13 Rs.2,04,138/- filed on 26.05.2014 1. Oriental Insurance-Rs.1343/- 2. Day Day Housekeeping service ₹ 6.666/- Rs.2,88,31,498/- Rs.2,32,15,084/- Rs.56,04,097/- FIRC received during the quarter but prior to 26.05.2013 ST/40570/2016 Oct 2013 to Dec `13 Rs.1,70,010/- filed on 12.06.2013 1. Day Day Housekeeping service ₹ 10,237/- 2. Viva Internet charges Recharged on 25.10.2013 (Credit Note)- ₹ 1,100/- Rs.1,73,50,903/- Rs.1,63,60,138- Rs.1,79,025/- (Rejected on condition that received by NEFT transfer) Rs.8,71,740/- FIRC received during the quarter but prior to 27.05.2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f admissibility of CENVAT credit taken on the impugned input services enumerating with the definition of Rule 2(l), ibid, inasmuch as, the definition of Rule 2(l) clearly contains exhaustive list of services falls and not falls under its purview. Thus, the input services on which CENVAT Credit disallowed by the lower authority is as per law. iii. Similarly, the time limit reckoned by the lower authorities is as per law. iv. Moreover, it is settled law that no interpretation could be made when there is no ambiguity in plain reading of the statutes. v. The Hon ble Apex Court in the case of 2012 (283) E.L.T. 161 (S.C.) Commissioner Of Central Excise, Mumbai Vs Fiat India Pvt. Ltd. in para 22 held as follows: 22. ... but as we are concerned with interpretation of a statutory provision, the mere fact that a correct interpretation may lead to hardship would not be a valid consideration for distorting the language of the statutory provisions. vi. On reading para 3(a) (b) of Notification No.27/2012 CE(NT) dated 18.06.2012 reproduced below it is clear that the application should be filed before the expiry of Section 11 B of Central Excise Act, 1944: 8.1 H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the relevant date in terms of Sec 11B of the Central Excise Act. While venturing to do so, I find that the export invoices related to the FIRCs received during the relevant quarter raised before 21.06.2012 are beyond the period of one year stipulated under Sec 11B to reckon for the export turnover, since the claim has been filed by the claimants only on 21.06.2013. Accordingly I find that the Export turnover is liable to be determined as ₹ 1,50,25,160/- for the purpose of this claim as defined under Rule 5(1) D of Cenvat Credit Rules, 2004. I find that the claimants have declared the Export turnover in the relevant columns of Form A of the claim as ₹ 1,94,02,792/- which I find has been arrived at without reckoning the actual export proceed realization (within the time frame stipulated under Sec 11B of the Central Excise Act), which I therefore reject as incorrect. 9.4 Discernably, original authority has reduced the export turnover from ₹ 1,94,02,792/- to ₹ 1,50,25,160/- for the reason that balance amount relates to FIRCs though received in the relevant quarter, however, export invoices thereof have been raised before 21.06.2012 and hence are beyond the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otal turnover means sum total of the value of - (a) all excisable goods cleared during the relevant period including exempted goods, dutiable goods and excisable goods exported; (b) export turnover of services determined in terms of clause (D) of sub-rule (1) above and the value of all other services, during the relevant period; and (c) all inputs removed as such under sub-rule (5) of rule 3 against an invoice, during the period for which the claim is filed. (2) This rule shall apply to exports made on or after the 1st April, 2012 : Provided that the refund may be claimed under this rule, as existing, prior to the commencement of the CENVAT Credit (Third Amendment) Rules, 2012, within a period of one year from such commencement : Provided further that no refund of credit shall be allowed if the manufacturer or provider of output service avails of drawback allowed under the Customs and Central Excise Duties and Service Tax Drawback Rules, 1995, or claims rebate of duty under the Central Excise Rules, 2002, in respect of such duty; or claims rebate of service tax under the [Service Tax Rules, 1994] in respect of such tax. Explanation 1 . - Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uarter for which claim is made, refund of credit amount corresponding to the payments received can only be made during the relevant quarter. In this way, the Government is ensuring that not only services are exported but also payments thereof are received at the point when the refund claim under Rule 5 ibid is made. 9.9 No doubt, the provisions of Section 11B have been made applicable to service tax vide Section 83 of the Finance Act, 1994. Nonetheless, by the rule of implied exception, the specific provisions of Rule 5 of Cenvat Credit Rules, 2004, will definitely take precedence following the maxim Generalia Specialibus non derogant - according to which when a matter falls under a specific provision, then it must be governed by that provision and not by the general provision. 9.10 In the Tribunal's decision in the case of Bechtel India Pvt. Ltd. Vs CCE Delhi - 2014 (34) STR 437 (Tri.-Del.) cited supra by the ld. Advocate, wherein also export of services was involved, it has been held that in case of export services, export is complete only when foreign exchange is received in India and therefore claim filed within one year from the date of receipt of foreign exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice 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) Total turnover x Net CENVAT credit Where, - (A) ------ (B) ------- (C) ------ (D) Export turnover of services means the value of the export service calculated in the following manner, namely :- Export turnover of services = payments received during the relevant period for export services + export services whose provision has been completed for which payment had been received in advance in any period prior to the relevant period - advances received for export services for which the provision of service has not been completed during the relevant period; From the aforesaid provision in clause (D) of Rule 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 rece ..... X X X X Extracts X X X X X X X X Extracts X X X X
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