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TMI Blog2019 (7) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... otal turnover. All these appeals involve identical issue and hence are taken up together for common disposal. 2. Today when the matter was taken up for hearing, Shri Satish Sundar, Ld. Advocate appearing for the assessee-appellant, contended that the appellant herein is a 100% EOU registered with Software Technology Parks of India and engaged in providing pre-press services for leading international Science and Technology Medical Professions, during export of output service, appellant availed host of input service on which they are required to discharge service tax and they also import services on which service tax is discharged by the appellant as a recipient on reverse charge mechanism. As per Rule 5 of Cenvat Credit Rules 2004, a service provider who provides an output service which is exported is not liable to pay service tax, subject to certain terms and conditions and limitations as specified under the relevant notification issued in this regard. The conditions, safeguards and limitations for refund of unutilized Cenvat credit under Rule 5 of CCR has been specified through Notification No. 5/2006 (for the period up to 17.06.2012) and by Notification No. 27/2012 (w.e.f. 18.06 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 223 (Tri.-Mum.) ii) CCE, Hyderabad Vs. Hyundai Motor India Engg. Pvt. Ltd. 2015 (39) STR 984 (AP) iii) CCE, Bengaluru Vs. Span Infotech (I) Pvt. Ltd. 2018 (12) GSTL 200 (Tri.-LB) iv) Aircheck India Pvt. Ltd. Vs. CGST, Mumbai 2019 (24) GSTL 204 (Tri.-Mum.) He submitted that the Larger Bench decision in the case of Span Infotec (I) Pvt. Ltd. (supra) is squarely applicable to the facts of the present case and hence, the partial rejection of the refund claim being time barred cannot be sustained which is required to be set aside. 3.2 He further submitted, interalia that invocation of Notification No. 5/2006-CE (NT) dated 14.03.2006 and condition thereon was erroneous; that the appellate authority had taken recourse to import the conditions found in that Notification, especially at clause 4 appendix to uphold the order of the lower adjudicating authority; that Notification No. 5/2006-CE (NT) dated 14.03.2006 has been superseded by Notification 27/2012 -CE (NT) dated 18.06.2012 and therefore finding of the appellate authority in this regard cannot be sustained and required to be set aside; that it was a known fact that credit for payment of service tax paid on reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may furnish to establish that the amount of [duty of excise and interest, if any, paid on such duty] in relation to which such refund is claimed was collected from, or paid by him and the incidence of [such duty and interest, if any, paid on such duty] had not been passed on by him to any other person: . . . ......... [Emphasised in Bold for clarity] 5.2 Relevant portion of Rule 5 reads as under:- "Rule 5. Refund of CENVAT Credit. - (1) A manufacturer who clears a final product or an intermediate product for export without payment of duty under bond or letter of undertaking, or a service provider who provides an output service which is exported without payment of service 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) x Net CENVAT credit Total turnover [Emphasised in Bold for clarity] 5.3 It is clear that the refund claim was of input service credit taken on input or input services, in providing input servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id requires filing of copies of Bank Realization Certificate (BRC) which may not be available in all the cases at the time the goods are loaded/ leaves India, etc. Unless BRC is received, the applicant will not be able to file a refund claim because, if the BRC is not filed, sub-clause (d) of clause 3.0 is not satisfied and thus, application becomes incomplete. 5.5 It is in this context that it is relevant to refer to the decision of the Hon'ble Larger Bench, in the case of Span Infotech (I) Pvt. Ltd. (supra), wherein it has been held as under:- "12. The related question for consideration is whether the time limit is to be restricted to the date of FIRC or can be considered from the end of the quarter. The Tribunal in the case of Sitel India Ltd. (supra), has observed that the relevant date can be taken as the end of the quarter in which FIRC is received since the refund claim is filed for the quarter. 13. Revenue has expressed the view that relevant date in the case of export of services may be adopted on the same lines as the amendment carried out in the Notification No. 27/2012, w.e.f. 1-3-2016. Essentially, after this amendment the relevant date is to be considered as the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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