TMI Blog2018 (2) TMI 1128X X X X Extracts X X X X X X X X Extracts X X X X ..... ble in respect of the export of services or as the case may be, the excisable material used in the export of services shall be the relevant date and if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, or if it is exported by land, the date on which such goods pass the frontier, or if the goods are exported by post, the date of despatch of goods by the Post Office concerned to a place outside India. The refund has not accrued to the petitioner on account of any order or judgment but on account of statutory provisions coupled with the notification where input services are used for export of services. Thus, the reliance placed on the explanation (B)(ec) does not r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the petitioner's refund claims is barred by limitation is just and proper. Being the only issue, this will not be a bar and the Court would be well justified in exercising its jurisdiction under Article 226 of the Constitution of India. 5.The petitioner filed an application for refund dated 20.08.2013 under Rule 5 of the CENVAT Credit Rules, 2004. The various heads under which the refunds were claimed are mentioned in the application and in the appropriate format supported by Auditor's Certificate. The respondent took up the case for adjudication and passed Order-in-Original dated 30.10.2015. The Adjudicating Authority considered the issue as to whether the application filed for refund was within the time prescribed under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.12.2017. Thus the petitioner's entitlement for refund on the amounts claimed by them was held to be sustainable except for the dis-allowance in respect of two issues. At this stage of the matter, the impugned show cause notice was issued stating that the application filed by the petitioner for refund dated 27.04.2017 after the order was passed by the Commissioner of Appeal is barred by limitation and to that said effect the proposal has been made in the impugned show cause notice to reject the claim of the petitioner. 7.The revenue's case is that as per Section 11(B) of the Central Excise Act, 1944, the refund claim has to be filed within one (1) year from the relevant date and the relevant date in the case of the petitioner is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clause 3(b) of the notification the application for refund in form A along with the documents specified therein and the enclosures relating to the quarter for which the refund is claimed, shall be filed by the claimant before the expiry of the period specified under Section 11(B) of the Act. Thus the petitioner filed an application in terms of the said notification and the adjudicating authority namely,the respondent in paragraph 8 of its order dated 30.10.2015 and found that the export invoices raised after 06.09.2017 are well within the period of limitation as per Section 11(B) of the Act. Therefore, it has to be seen as to whether the explanation under Section 11(B)(1) has to be referred to consider whether the petitioner's applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aircraft in which such goods are loaded, leaves India, or (ii)if the goods are exported by land, the date on which such goods pass the frontier, or (iii)if the goals arc exported by post, the date of despatch of goods by the Post Office concerned to a place outside India; 11.Since the nature of services done by the petitioner is export of services, it would be appropriate to read the definition of relevant date as per the above explanation in the following manner. 12. Relevant date means, in the case of export of services out of India, where a refund of CENVAT paid is available in respect of the export of services or as the case may be, the excisable material used in the export of services shall be the relevant dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of Union of India and Another Vs. Kirloskar Pneumatic Company Limited reported in (1996) 4 SCC 453 for the proposition that if the statue prescribes period of limitation High Court cannot direct the Customs Authorities to act contrary to the mandatory provision. This said decision can have no appreciation to the facts of the present case as in the said case the High Court directed the Customs Authority not to reject the refund application as time barred. No such contingencies arises in the instant case. Therefore, the said decision is distinguishable on facts. Thus, for all the above reasons, I hold that the impugned show cause notice is without jurisdiction and unsustainable. Accordingly, the writ petition is allowed and the impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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