TMI Blog2023 (9) TMI 1066X X X X Extracts X X X X X X X X Extracts X X X X ..... TMI 946 - CESTAT BANGALORE] and also referred to orders of various CESTAT Benches across the country, and held 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 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. The rejection of refund by the lower authorities is not in order, for which reason the impugned order is set aside - appeal allowed. - MR. P. DINESHA, MEMBER (JUDICIAL) AND MR. M. AJIT KUMAR, MEMBER (TECHNICAL) Shri S. Viswanathan, Advocate for the Appellant Shri N. Satyanarayanan, Assistant Commissioner for the Respondent O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... / input service credit to the extent of Rs.32,42,592/- for the provision of output service of Rs.21,05,01,428/- and further admitting that the input service credit remained unutilized since the output service in toto was exported without any domestic clearance. 2.3 The period involved in the above appeal is from April 2008 to June 2009. 3. Entertaining a doubt that the application for refund filed by the appellant was hit by time-bar, Show Cause Notice No. 48/2010 (R) dated 30.08.2010 was issued thereby inter alia proposing to reject, under Section 11B of the Central Excise Act, 1944, their refund claim. 4. The appellant appears to have participated in the personal hearing wherein the Order-in-Original records the filing of declara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the adjudicating authority on the decision in M/s. Mafatlal Industries Ltd. (supra) and also a decision of the Hon ble Madras High Court in the case of Commissioner of Central Excise, Coimbatore v. M/s. GTN Engineering (I) Ltd. [2012 (281 E.L.T. 185 (Mad.)] 7. Shri S. Viswanathan, Ld. Advocate, appeared for the appellant and Shri N. Satyanarayanan, Ld. Assistant Commissioner, defended the impugned order. 8.1 The Ld. Advocate would submit that the appellant is an EOU / STPI exporting consulting engineer services and thereby availing CENVAT Credit in respect of input services; refund of the same was claimed under Rule 5 of the CCR, though the exports were made between April 2008 and June 2009, but however, the foreign exchange receip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e orders of lower authorities and we have also gone through the Final Order of this Bench in the case of M/s. Miramed Ajuba Solutions Pvt. Ltd. (supra) relied upon by the Ld. Advocate. 12. We find that this Bench has considered in threadbare almost similar issue in the light of the Order of the Ld. Larger Bench in the case of M/s. Span Infotech (India) Pvt. Ltd. (supra) and also referred to orders of various CESTAT Benches across the country, and held as under: - 6.4 We find that there is no ground that Section 11 B mandates that the date of invoice must be considered as the relevant date. The residual category under Section 11 B is the date of payment of duty. In case of export of services as in these appeals there is no payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reed with the view expressed by Hon ble Karnataka High Court in the case of mPortal (supra) that Section 11B will have no application with respect to refund under Rule 5 of CCR. 11. The definition of relevant date in Section 11B does not specifically cover the case of export of services. Hence, it is necessary to interpret the provisions constructively so as to give its meaning such that the objective of the provisions; i.e. to grant refund of unutilized Cenvat credit, is facilitated. By reference to the Service Tax Rules, 1994 as well as the successor provisions i.e. the Export of Services Rules, 2005, we note that export of services is completed only with receipt of the consideration in foreign exchange. Consequently, the date of For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for consideration of refund claims under Rule 5 of the CCR 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. Further, we find that while scrutiny of the refund claims filed by the appellants, the lower adjudicating authority rejected a portion of the refund claims for the reason that they are not eligible for availment of Cenvat credit under Cenvat Credit Rules, 2004, on account of missing invoices, excess credit wrongly taken, Not being related to output service, non- mentioning of service provider s registration number on the input/input service invoices etc. Learned Advocate for the appellants has submitted that these invoices are actually availab ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
