TMI Blog2017 (10) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... ESTAT MUMBAI] - the point is whether M/s.Affinity’s case will have any impact on the present appeals? - Held that: - The Larger Bench of CESTAT, West Zonal Bench, Mumbai having noticed the decision of a Division Bench of Tribunal, Delhi in Bechtel India Pvt. Ltd. vs. Commissioner of Central Excise, Delhi [2013 (7) TMI 490 - CESTAT NEW DELHI] to the effect that the refund can be claimed after foreign exchange was received in India in respect of export of service, held that in view of the Division Bench decision and as no contrary decision was brought to its notice, no reference lies to the larger Bench. Thus in essence, the decision in Bechtel’s case being a decision rendered by Division Bench was approved and held to prevail over the decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the original adjudicating authority to consider the other refund claims afresh. As such, we do not find any infirmity or irregularity therein. The appellant can put-forth its objections if any with regard to those claims and the original adjudicating authority can pass an order on merits with regard to the other claims. Accordingly this point is answered. Appeal dismissed - decided against appellant. - C.E.A. Nos.93, 99, 100 and 105 of 2015 - - - Dated:- 22-7-2017 - Sanjay Kumar And U. Durga Prasad Rao, JJ. JUDGMENT ( Per Hon ble Sri Justice U. Durga Prasad Rao) The batch of C.E.A. Nos.93, 99, 100 and 105 of 2015 are filed by the appellant aggrieved by the final order Nos.20870-20881/2014 dt.21.05.2014 in Appeal Nos.ST/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls-II, Hyderabad. Those 13 appeals were dismissed by the learned Commissioner, Appeals-II in his common order dated 22.07.2011. c) Aggrieved by the above dismissals, the assessee preferred batch of appeals-ST/2827/2011-DB to ST/2838/2011-DB before the CESTAT. Learned CESTAT formulated three points in the batch of appeals viz. I. Whether relevant date specified under Section 11B of Central Excise Act 1944 is relevant for refunds under Rule 5 of the CENVAT Credit Rules, 2004 read with Notification 5/2006- C.E. (N.T.) dated 14.03.2006? II. Eligibility of services as input services for grant of refund. III. Whether CENVAT credit availed on the input services before payments for the services received? 4 a) The first issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction services and determine the admissible refundable amount in accordance with law. c) Aggrieved by the final orders of CESTAT, Bangalore, the Commissioner of Customs, Central Excise and Service Tax, Hyderabad-IV filed the batch of appeals. 5) Heard. 6) The points that arise for consideration in this batch of appeals are: 1) Whether the CESTAT is correct in holding that the assessee was within time in claiming refund without discussing the Sec.11B relevant for refunds under Rule 5 of CCR, 2004 read with Notification No.05/2006-CE(NT) dt.14.3.06 and merely relying on the decision of Hon ble CESTAT, Mumbai in the case of CCE, Pune-I vs. Eaton Industries Pvt. Ltd. (2011(22) STR 223 (Tri-Mumbai)? 2) Whether CESTAT is correc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom that date, the assessee is required to file the refund claim. In a subsequent decision in M/s.Affinity s case(3 supra) relied upon by the appellant, another learned single Member of Mumbai Tribunal took a contra view to the effect that the relevant date for determining the period of limitation will be the date of export of services or the date when the invoices are raised. Thus both the above decisions rendered by Single Members are contrary to each other. However, the matter was not ended there. In Business Process Outsourcing India Private Limited vs. C.C S.T, Bangalore [2014 (34) S.T.R 364 (Tri.-Bang)] , a learned Single Member of the Bangalore Tribunal expressed the view that the date on which consideration was received was releva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the CENVAT Credit on construction services. With regard to the other claims, the CESTAT remanded the matter to the original adjudicating authority to consider the refund claims afresh. It should be noted that the appellant in the Grounds of Appeal mentioned that as against the Infosys Ltd. s case (2 supra), the department filed appeal before the Hon ble Apex Court and the same is pending but failed to produce copy of the Grounds of Appeal or any stay order granted by Hon ble Apex Court staying the judgment in Infosys Ltd. s case (2 supra). It is also not known whether a final order is passed by the Apex Court in the said alleged appeal. In these circumstances, we can only uphold the decision of the CESTAT, Bangalore relying on Infosys Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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