TMI Blog2020 (1) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... Cenvat credit. Appeal dismissed. - Service Tax Appeal No. 30791 of 2018, 30792 of 2018, 30793 of 2018 - A/31116-31118/2019 - Dated:- 3-12-2019 - HON'BLE MR. P. VENKATA SUBBA RAO, MEMBER (TECHNICAL) Shri K. Sivaraman, Chartered Accountant for the Appellant. Shri C. Mallikarjun Reddy, Authorized Representative for the Respondent. ORDER PER: P.V. SUBBA RAO. 1. These appeals are filed against impugned Order-in-Appeal No. HYD-SVTAX- RRC-APP-221-223-17-18 (APP-I) dt.26.03.2018. 2. The appellants are engaged in providing Information Technology services and had exported such services. They had filed a refund claim seeking refund of accumulated Cenvat credit for three quarters i.e., a) July, 2016 to September, 2016 ₹ 11,35,911/- b) April, 2016 to June, 2016 ₹ 12,17,983/- c) January, 2016 to March, 2016 ₹ 12,99,680/-. 3. These refund claims were filed under Rule 5 of Cenvat Credit Rules (CCR), 2004 read with Notification No. 27/2012-CE (NT) dt.18.06.2012. After due process, learned o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and where for any reason such adjustment is not possible, the manufacturer or the provider of output service shall be allowed refund of such amount subject to such safeguards, conditions and limitations, as may be specified, by the Central Government, by notification: Provided that no refund of credit shall be allowed if the manufacturer or provider of output service avails of drawback allowed under the Customs and Central Excise Duties Drawback Rules, 1995, or claims rebate of duty under the Central Excise Rules, 2002, in respect of such duty; or claims rebate of service tax under the Export of Service Rules, 2005 in respect of such tax. Provided further that no credit of the additional duty leviable under sub-section (5) of section 3 of the Customs Tariff Act shall be utilised for payment of service tax on any output service. Explanation: For the purposes of this rule, the words output service which is exported means the output service exported in accordance with the Export of Services Rules, 2005. 7. The procedure, safeguards, conditions and limitations with respect t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 5 of the said rules. (vi) for the value of all services other than export during the quarter, the time of provision of services shall be determined as per the provisions of the Point of Taxation Rules, 2011. (vii) the amount of refund claimed shall not be more than the amount lying in balance at the end of quarter for which refund claim is being made or at the time of filing of the refund claim, whichever is less. (viii) the amount that is claimed as refund under rule 5 of the said rules shall be debited by the claimant from his CENVAT credit account at the time of making the claim. (ix) In case the amount of refund sanctioned is less than the amount of refund claimed, then the claimant may take back the credit of the difference between the amount claimed and amount sanctioned. 3. Procedure for filing the refund claim. (a) The manufacturer or provider of output service, as the case may be, shall submit an application in Form A annexed to the notification, to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise, as the case may be, in who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herself in respect of the correctness of the claim and the fact that goods cleared for export or services provided have actually been exported and allow the claim of exporter of goods or services in full or part as the case may be. 8. Para 3(b)(ii) of this notification requires the claims of refunds to be filed before one year from the date of receipt of payment in convertible foreign exchange in cases of export of services. ST/30791/2018 is filed against OIA No.HYD-SVTAX-RRC-APP-221-17-18 (APP-I) dt.26.03.2017. While deciding the department s appeal by this impugned order, learned first appellate authority has found that further refund claims for the period April, 2016 to June, 2016 in respect of three invoices viz., INEDA/2015-16/009, INEDA/2015-16/010 INEDA/2015-16/011, the foreign exchange was realized on 27.04.2016, 27.05.2016 28.06.2016 respectively but the claim was filed only on 19.7.2017. Therefore, he held that the claim was filed beyond the period of one year from the receipt of foreign exchange. During hearing before this bench, learned Chartered Accountant representing the appellant presented various data but could not show that the foreign exchan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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