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TMI Blog2024 (9) TMI 1495X X X X Extracts X X X X X X X X Extracts X X X X ..... registered under the Software Technology Park of India [STPI] Scheme. The appellant provides Information Technology enabled services to clients located outside India. This service falls within the ambit of 'business auxiliary service'[BAS] . 3. The services provided by appellant were entirely exported outside India and so the appellant was not able to utilize the CENVAT credit for the service tax paid on the input services. Accordingly, the appellant claimed refund of unutilized CENVAT credit under rule 5 of the CENVAT credit Rules, 2004 [the 2004 Credit Rules] . 4. It is on 19.03.2008 that the appellant filed an application for refund of CENVAT credit for the quarter of January 2008 to March 2008 under rule 5 of the 2004 Credit Rules and the Notification dated 14.03.2006. The details of the refund of CENVAT credit claimed by the appellant for the relevant period is as follows: Summary of CENVAT credit register period: October 2007- March 2008 S. No. Month Credit Taken (Rs.) 1 Oct-07 8,79,701.66 2 Nov-07 3,79,968.35 3 Dec-07 2,06,382.26 4 Jan-08 3,06,194.76 5 Feb-08 2,19,038.72 6 Mar-08 2,13,458.09 Total 22,04,743.84 5. The issue t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Restrictions for taking credit under condition no. 5 of the Notification dated 14.03.2006 did not apply to the refund claims filed by the appellant since it was a fully export unit; (iv) The total amount as shown in the export invoices were realized in convertible foreign exchange; and (v) All the services used by the appellant qualified as "input services" which had been used in providing "output services" exported by the appellant. 9. However, out of the total refund claim of Rs. 22,04,744/- the Assistant Commissioner denied the refund of Rs. 21,82,843/- for the reason that it was claimed beyond the time prescribed in section 11B of the Central Excise Act. The relevant portions of the observations made by the Assistant Commissioner are reproduced below: "9. ***** Accordingly, the relevant date for the purpose section 11B would be date of rendering of service. Therefore, the claimant was required to have filed refund claim within one year from the date of export of service which, incidentally, is the date of rendering of service. The refund claim pertains to the period Oct 07 to March 08 and the refund claim was filed on 19.03.2009. As per the provisions specified in Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nbsp; "Since subject refund claim is with respect to export of services, relevant date has to be taken according to the date of export of services and the adjudicating authority has rejected the refund claim in respect of Cenvat Credit availed on the Service Tax paid on input services used in the out-put services exported before 20.03.2008 i.e. exactly before one year of filing of refund claim on 19.3.2009. In other words input services received by the appellants before 20.03.2008 cannot be construed to have been used in the services exported after 20.03.2008. Therefore, the adjudicating authority has correctly rejected the refund claim after considering the date of export of services." 11. This appeal has been filed to assail the aforesaid order dated 09.08.2012 passed by the Commissioner (Appeals). 12. Ms. Priyamvada Sinha, learned counsel appearing for the appellant assisted by Ms. Drishti Sakhuja, made the following submissions: (i) The show cause notice proposed to reject the refund claim filed by the appellant on various grounds that did not cover the ground of limitation. The refund claim amounting to Rs. 21,82,843/- has been rejected on a new ground that the refund cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,82,843/-, which has been denied to the appellant only for the reason that the claim was made beyond the time prescribed under section 11B of the Central Excise Act. 16. The first contention advanced by the learned counsel for the appellant is that the ground on which the aforesaid refund claim has been rejected was not even a reason proposed in the show cause notice. 17. A perusal of the reasons stated in the show cause notice does support the case of the appellant. The show cause notice alleges that the documents submitted by the appellant are not sufficient to determine the nature of the service provided and that the "input services" were not used for "output services". The Assistant Commissioner found as a fact that the appellant had produced all the relevant documents, because it is for this reason that the claim of Rs. 21,901/- was sanctioned to the appellant. The remaining amount would also have been sanctioned, but for the fact that it was found that the claim was made beyond the time prescribed and was, therefore, barred by time. Thus, it follows that the claim has been rejected on a ground not stated in the show cause notice. 18. This apart, the Assistant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1B. Consequently, we are of the view that completely ignoring the provisions of Section 11B may not be appropriate. This view is supported by the decision of Hon'ble Madras High Court in the case of GTN Engineering (supra) wherein Hon'ble High Court has disagreed 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 Foreign Inward Remittance Certificate (FIRC) is definitely relevant. The Hon'ble Andhra Pradesh High Court has held that the date of receipt of consideration may be taken as relevant date in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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