TMI Blog2019 (7) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... o doubt that it is Notification No. 27/2012-CE (NT) which applies and therefore, the above notification should be applied in full by the authorities while working out the refund - In the case on hand, the authorities have rejected the refund claim holding that the claims for refund were time barred which is one of the sub-clauses under clause 3.0 of Notification No. 27/2012 ibid. The refund claim of the appellant is not a claim under Section 11 B per se and therefore provisions of 11 B cannot be blindly applied in this case because, there is no disputes that the refund claim was under Rule 5 and the allowability or otherwise could only be as per the guidelines or the proviso under Rule 5 ibid - Rule 5 extracted supra prescribes the formula for determination of refund of Cenvat credit, subject to procedure, safeguards, conditions limitations as may be specified by the Board; and it is that Notification which refers to Section 11 B as one of the conditions which is not the only condition. This may not be without a reason. The ruling in the case of CCE CST, BENGALURU SERVICE TAX-I VERSUS M/S. SPAN INFOTECH (INDIA) PVT. LTD. [ 2018 (2) TMI 946 - CESTAT BANGALORE] squarely ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vocate 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. 18.06.2012), and both the notifications clearly specify that such refund claims shall be filed before the expiry of the period specified in Section 11B of Central Excise Act, 1944. During the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 reverse charge should have been granted for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocuments referred to in section 12A) as the applicant 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 X X X Extracts X X X X X X X X Extracts X X X X ..... is the settled position of law that what cannot be done directly, cannot be sought to be achieved indirectly; i.e., no such fetters could be prescribed through Notifications/Circulars when the substantive law do not intend any such fetters. Sub-clause (d) under clause 3.0 ibid 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 fil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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