2016 (7) TMI 1346 - HC - Service Tax

100% EOU - Refund of unutilised CENVAT credit - Whether the CESTAT is correct in holding that the assessee was within time in claiming refund without discussing the Sec. 11B relevant for refunds under Rule 5 of CCR, 2004 read with N/N. 05/2006-C.E. (N.T.), dated 14-3-2006 and merely relying on the decision of Hon ble CESTAT, Mumbai in the case of CCE, Pune-I v. Eaton Industries Pvt. Ltd. 2010 (12) TMI 71 - CESTAT, MUMBAI ? - Held that - the decision in Bechtel s case 2013 (7) TMI 490 - CESTAT NEW DELHI being a decision rendered by Division Bench was approved and held to prevail - it was held in the case that In case of export of Services export is complete only when foreign exchange is received in India, relevant date of export of services is date of receipt of foreign exchange - decided against Revenue. Whether CESTAT is correct in holding that the assessee is eligible to claim of refund of Cenvat credit on construction service relying on case of Infosys Ltd. 2014 (3) TMI 695 - CESTAT BANGALORE , where it was held that assessee is entitled to the Cenvat credit on construction services? - Held that - the appellant in the Grounds of Appeal mentioned that as against the Infosys Ltd. s case (supra), the department filed appeal before the Hon ble Apex Court and the same is pending but failed to produce copy of the Grounds of Appeal or any stay order granted by Hon ble Apex Court staying the judgment in Infosys Ltd. s case (supra). It is also not known whether a final order is passed by the Apex Court in the said alleged appeal. In these circumstances, we can only uphold the decision of the CESTAT, Bangalore relying on Infosys Ltd. s case - decided against Revenue. Whether the Tribunal is correct in remanding the matter with regard to the claim of refund of Cenvat credit on other services such as courier service, repair or maintenance services, telephone service, rent-a-cab service, management consultant service, chartered accountant service, etc., since the said services are not having nexus with their output services i.e. Consulting Engineering Service which was exported online? - Held that - This point is concerned, the CESTAT, Bangalore only remanded the matter to the original adjudicating authority to consider the other refund claims afresh. As such, we do not find any infirmity or irregularity therein. Appeal dismissed - decided against Revenue.

Summary

Issues involved:
1. Interpretation of relevant date for filing refund application under Section 11B of the Excise Act.
2. Eligibility of claiming refund of Cenvat credit on construction services.
3. Remanding the matter for considering refund claims on other services.

Analysis:

Issue 1:
The CESTAT held that the relevant date for filing a refund application under Section 11B of the Excise Act is the date of receipt of consideration for services rendered, not the date of service provision. The appellant challenged this decision citing a contrary ruling in M/s. Affinity Express India Pvt. Limited v. Commissioner of Central Excise, Pune-I. However, the conflicting decisions by different tribunals were discussed, and it was concluded that the decision in Bechtel India Pvt. Ltd. v. Commissioner of Central Excise, Delhi prevails, establishing that the date of consideration receipt is crucial for refund claims. Thus, the decision in M/s. Affinity Express India Pvt. Limited does not impact the present appeals.

Issue 2:
Regarding the eligibility of claiming refund of Cenvat credit on construction services, the CESTAT relied on Infosys Ltd.'s case and allowed the credit for construction services. The appellant mentioned a pending appeal by the department against Infosys Ltd.'s case in the Apex Court but failed to provide any stay order or final judgment information. As a result, the CESTAT's decision was upheld based on Infosys Ltd.'s case, as the status of the department's appeal was not clear.

Issue 3:
The CESTAT remanded the matter to the original adjudicating authority for reconsidering refund claims on other services. The court found no irregularity in this decision, stating that the appellant could raise objections, and the adjudicating authority would decide on the merits of the claims. Therefore, the remand decision was considered appropriate, and the point was answered accordingly.

In conclusion, the appeals were dismissed as no merit was found in the arguments presented. The judgment upheld the decisions made by the CESTAT, emphasizing the importance of the date of consideration receipt for refund applications and the eligibility of claiming Cenvat credit on construction services based on relevant case law. The remanding of the matter for other refund claims was deemed appropriate, and the appeals were dismissed without costs.