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2019 (5) TMI 380

le 5 of the Cenvat Credit Rules, 2004 permits the service provider for claim of refund of service tax paid on the input services used/utilized for exportation of the output service. In exercise of the powers conferred in the said statutory provisions, the Central Government had issued the Notification No. 27/2012-C.E.(N.T.) dated 18.06.2012, prescribing the procedure, safeguards and limitations for allowing the Cenvat benefit. The said notification, vide paragraph 3(b) has prescribed that the application in prescribed form shall be filed by the claimant before expiry of the period specified in Section 11B of the Central Excise Act, 1944. The said statute has provided for a time limit of one year from the ‘relevant date’ for lodgement of the refund claim application. Relevant date prescribed therein is in context with situations envisaged under the Central Excise statute, concerning the excisable goods. The issue with regard to the relevant date for consideration of refund of service tax on export of service was also considered by the Hon’ble Andhra Pradesh High Court in the case of Hyundai Motors (I) Engineering (P) Ltd., [2016 (7) TMI 1346 - ANDHRA PRADESH HIG .....

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, 88714, 88708, 88695, 88717, 88684, 88700, 88670, 88716, 88713, 88690, 88671, 88673, 86573, 88676, 88674, 86611, 88688, 88691/2018 - A/85821-85840/2019 - 3-5-2019 - Mr. S.K. Mohanty, Member (Judicial) And Mr. P. Anjani Kumar, Member (Technical) Shri M.K. Sarangi, Authorized Representative for the Appellant Shri Prasad Paranjape, Advocate for the Respondent ORDER Per: S.K. MOHANTY Revenue has preferred these appeals before the Tribunal against the impugned orders No. PK/294 to 308/ME/2017 dated 30.11.2017 and No. PK/287-293/ME/2017 dated 30.11.2017 passed by the Commissioner (Appeals), CGST & Central Excise, Mumbai. Vide the impugned orders, the Learned Commissioner (Appeals) has allowed rebate of service tax paid on output services exported under Notification No. 11/2005-S.T. dated 19.04.2005 and refund of accumulated input tax credit under Rule 5 of the Cenvat Credit Rules, 2004 read with Notification No. 27/2012 C.E.(N.T.) dated 18.06.2012 to the respondent. Against the impugned order No. PK/294 to 308/ME/2017 dated 30.11.2017, Revenue has filed 15 numbers of appeals, which were listed as Appeal Nos. 88698, 88701, 88714, 88708, 88695, 88717, 88684, 88700, 88670, 88716, 88713 .....

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he rebate claims. The Learned Commissioner (Appeals) further held that the respondent is eligible for rebate in respect of the exported service, for which FIRCs showing receipt in Indian currency (INR) were issued and that there is no short receipt of consideration inasmuch as the whole amount of consideration mentioned in the invoices was received by the respondent and the difference in the accounting entry is due to fluctuations in the exchange rates. It has also been held that the respondent is eligible to avail Cenvat Credit claimed in respect of Works Contract Service and Real Estate Agent Service. The impugned order No. PK/287- 293/ME/2017 dated 30.11.2017 has disposed of 5 numbers of rebate claims, against which Revenue has preferred the above referred 5 numbers of appeals before the Tribunal. 3. Heard Shri M.K. Sarangi, learned Authorised Representative for Revenue and Shri Prasad Paranjape, learned Advocate for the Respondent and perused the case records, including the written note of submissions filed by both sides. 4. The following findings are recorded in respect of the above referred 15 numbers of appeals filed by Revenue against the impugned order No. PK/294 to 308/ME .....

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the said statute does not consider such aspect. Thus, there was confusion with regard to consideration of the relevant date for computation of the limitation period. Considering the divergent views expressed by different benches of the Tribunal, the matter was referred to the Larger Bench and in the case of C.C.E., CUS. & S.T., Bengaluru Vs. Span Infotech (India) Pvt. Ltd., 2018 (12) G.S.T.L. 200 (Tri.-LB), the Larger Bench has concluded the issue that in respect of export of services, the relevant date for purposes of deciding the time limit for consideration of refund claims under Rule 5 of the CCR, 2004 may be taken as the end of the quarter in which the FIRC is received, in cases where the refund claims are filed on a quarterly basis. We also find that the issue with regard to the relevant date for consideration of refund of service tax on export of service was also considered by the Hon ble Andhra Pradesh High Court in the case of Hyundai Motors (I) Engineering (P) Ltd., 2017 (49) STR 385 (A.P.) and the Tribunal vide Order No. A/85150-85151/2018 dated 29.01.2018 in the case of M/s. Morgan Stanley India Service Pvt. Ltd., holding that the period of limitation of one year s .....

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5.2. Both sides agree that in respect of Appeal No. ST/86611/2018, the Learned Commissioner (Appeals) has decided the issue entirely in favour of the Revenue. Considering the submissions, we are of the view that the said appeals filed by Revenue are infructuous and accordingly, are dismissed. 5.3. The Learned Commissioner (Appeals) has held that the rebate claims filed within one year from the date of receipt of consideration in foreign exchange are within limitation period and accordingly, the respondent should be eligible for such rebate claim. Rebate of service tax paid on the taxable service is governed under Notification No. 11/2005-ST dated 19.04.2005. The said notification provides that rebate of output service tax can be claimed only in cases, where the payment for the exported services is received in convertible foreign exchange. Further, the said notification also mandates that the rebate claim has to be accompanied with proof of receipt of payment in convertible foreign exchange. It is an admitted fact on record that the respondent had complied with the conditions and the procedures laid down under the said notification. With regard to the period of limitation for filing .....

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