TMI Blog2022 (6) TMI 615X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. However, during the course of hearing learned consultant for the appellants could not produce documents to prove that the claims filed by the appellants were in time as enunciated by the larger Bench. Thus, it was not possible to verify the claim of the appellants that the respective refund applications have been filed within one year of realization of the export proceeds in the relevant quarter - this Bench will not be in a position to decide whether or no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on the ground that they have been filed beyond one year of date of invoice. Show Cause Notices were accordingly issued. The original authority has confirmed the allegations in the show cause notice and rejected the refund claims. The appellate authority, vide Orders-in-Appeal No.43-49/2017 dated 20.02.2017, has upheld such rejection. The learned Commissioner (Appeals) has relied upon CCE Coimbatore Vs GTN Engineering (I) Ltd. - 2012 (281) ELT 185 (Mad.) and CC Bangalore Vs Spice Telecom - 2006 (203) ELT 538 (SC). 2. Shri K. Sivarajan, Learned Consultant submits that the decision in GTN Engineering deals with export of goods and not with export of services. He relies on the following cases: (a) KKSK Leather Processors (P) Ltd. Vs CC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect as held by the jurisdictional High Court in W.P.No.5941 6018 of 2018 filed by Doosan Infracore India Private Ltd. Vs Assistant Commissioner. He also submits that a beneficial notification should be construed liberally in view of Union of India Vs Suksha International Nutan Gems and Another - 1989 (39) ELT 503 (SC) and CCE Vs Ford India Pvt Ltd 2016-TIOL-31-SC-CX-LB. He further submits that substantial benefit should not be denied due to non-fulfilment of procedural conditions as held by the Hon ble Apex Court in Mangalore Chemicals Fertilizers Ltd. Vs Deputy Commissioner - 1991 (55) ELT 437 (SC). He lastly submits that Section 11B is not applicable for export of services as held in m-Portal India Wireless Solutions Pvt. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 case of Hyundai Motors [2015 (39) S.T.R. 984 (A.P.)]. 12 . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ltant for the appellants could not produce documents to prove that the claims filed by the appellants were in time as enunciated by the larger Bench as discussed above, Thus, it was not possible for us to verify the claim of the appellants that the respective refund applications have been filed within one year of realization of the export proceeds in the relevant quarter. Under such circumstances, we are of the considered opinion that this Bench will not be in a position to decide whether or not the different claims filed by the appellants are covered by the decision of the Larger Bench in the case of M/s. Span Infotech (supra). For the limited purpose of verification of the relevant dates of realization of export proceeds and the dates of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
