TMI Blog2017 (9) TMI 707X X X X Extracts X X X X X X X X Extracts X X X X ..... . On fulfillment of such condition, the appellants shall be entitled for the rebate. Time limit u/s 11B - Held that: - The appellants did render service which are liable to service tax. The claim for rebate has to be within the ambit of the provision of Section 11B of Central Excise Act, 1944 made applicable to the service tax collected in terms of Finance Act, 1994. The present appellants claim for rebate is barred by limitation - appeal dismissed - decided against appellant. - Service Tax Appeals No.56798 and 56800 of 2013 - ST/A/55303-55304/2017-CU[DB] - Dated:- 20-7-2017 - Shri S.K. Mohanty, Member (Judicial) And Shri B. Ravichandran, Member (Technical) Shri B.K. Singh, Advocate for the appellants. Shri Amresh Jain, Authorized Representative (DR) for the Respondent. ORDER Per: B. Ravichandran These two appeals are against order dated 31/12/2012 of Commissioner (Appeals), New Delhi and are dealing with common issue of appellant s eligibility to refund of service tax. These two appeals alongwith three others were disposed of vide final order of the Tribunal No.54174-54178 of 2014 dated 22/10/2014. The present appellants filed appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11, they provided taxable services to foreign clients for which they received consideration in convertible foreign exchange. They have paid service tax in respect of these transactions. However, later they have filed rebate claims in accordance with Rule 5 of Export of Service Rules, 2005 and Notification 11/2005-ST dated 19/04/2005. It is claimed that they have provided business auxiliary services to the foreign clients and the said service should be construed as export of service in accordance with Rule 3 (1) (iii) readwith Rule 3 (2) of Export of Service Rules, 2005. The claims were rejected by the Original Authority on the ground that the appellants failed to produce supporting agreements to ascertain the classification of service and accordingly the benefit of refund of service tax on services exported cannot be granted in terms of Notification 11/2005-ST dated 19/04/2005. On appeal, the said rejection was confirmed by Commissioner (Appeals). The matter was taken up to the Tribunal by the appellants, alongwith three other cases, involving similar facts. The Tribunal disposed of all these 5 appeals by a common order dated 22/10/2014, the Tribunal observed as below :- 6. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of Section 11B of the Central Excise Act, 1944, would be applicable, in relation to Service Tax as they apply in relation to Excise Duty. In terms of Explanation (A) to Section 11B, the refund includes rebate of Duty of Excise on excisable goods exported out of India or excisable materials used in the manufacture of goods which are exported out of India. Applying this explanation to Service Tax matters, in case of Service Tax, the refund would include rebate of Service Tax paid on the services exported out of India. Therefore, the provisions of Section 11B would be applicable to rebate of Service Tax in respect of services exported. In terms of Section 11B(1) of Central Excise Act, refund claim is to be filed before expiry of one year from the relevant date . The term relevant date is defined in explanation B of Section 11B of the Act. Clause (a) of Explanation (B) defines the relevant date in case of goods exported out of India. According to Explanation B(a), the relevant date in case of goods exported out of India is - (i) the date on which the ship or aircraft in which the goods are loaded/shipped, leaves India, in case of export of goods by sea or ai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt for such services has been received by the service provider in convertible foreign exchange and on this basis also, a transaction of service export is to be treated as complete only when the service has been provided and payment for the same has been received in convertible foreign exchange. We find that the same view has been taken by the Tribunal in the case of CCE, Pune-I v. Eaton Industries P. Ltd. referred in 2011-TIOL-166-CESTAT-Mum = 2011 (22) S.T.R. 223 (Tri.-Mumbai). 8. Since in case of Appeal No.ST/56798/2013 and ST/56800/2013, the rebate claims have been filed after expiry of one year from the date of receiving payments, these rebates claims have to be treated as time barred and as such, the orders rejecting their appeals on the ground of limitation have to be upheld. However, in other three appeals, the rebate claims have been filed within the limitation period and there is no dispute about limitation . 4. As already noted this order was put to challenge in respect of two appeals, wherein the claims were held to be barred by limitation. The Hon ble Delhi High Court remanded the matter for a fresh decision. 5. We have heard both the sides and perused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his is the distinction between the allowed rebate claims and the appellants case. 7. The learned Counsel for the appellants relied on certain case laws to support his claim that there can be no time limit under Section 11B when the amount paid by the appellants cannot be considered as service tax. We are not convinced by the submissions made by the appellants. First of all, it is clear that the appellants as a service provider rendered taxable services. The concession given in respect of services exported out of country is not absolute. The same has to be established on fulfillment of all the required conditions. On satisfactory compliance of such conditions, the appellants will be entitled for return of the tax paid by way of rebate. For claiming such rebate the provisions of law including the period of limitation for such claim are to be followed by the appellant. We note that appellant placed reliance on the decision of Hon ble Kerala High Court in Geojit BNP Paribas Financial Services Ltd. Vs. CCE, CUS ST, Kochi reported in 2015 (39) S.T.R. 706 (Ker.) and Hon ble Delhi High Court in Hind Agro Industries Limited Vs. CC reported in 2008 (221) E.L.T. 336 (Del.). ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
