2014 (10) TMI 203 - AT - Service Tax

Rectification of mistake - Applicable date / relevant date for refund application - Held that - Notification 5/2006 itself prescribes time limit as prescribed under Section 11B of the Central Excise Act. In view of the said position, the facts of Vodafone Cellular case are entirely different from the present case. Moreover, in the said judgment, this Tribunal has held that a time limit of one year would be applicable from the date of payment of service tax while in the present case, time limit has been specified in the Notification itself. The only issue is the relevant date. In the present case, the appellant is not required to pay any duty and, therefore, the concept of payment of duty becomes irrelevant. It is in these circumstances that the date of raising the invoice is considered as the relevant date. The other possibility would be to consider the date of taking the credit. However, that will not further the interest of appellant but would be adverse to the interest of the appellant - Rectification denied.

Summary

Issues:
1. Consideration of case laws in passing the order.
2. Applicability of time limit for filing refund claim under Rule 5 of Cenvat Credit Rules.

Analysis:
1. The appellant filed a ROM application citing that certain case laws were not considered while passing the order. The advocate argued that the Division Bench case of Vodafone Cellular Ltd. held that the time limit for filing a refund claim starts from the date of payment of service tax. However, the respondent contended that all judgments were indeed considered as indicated in para 7 of the order. The judge agreed that all judgments were considered, even though not discussed in detail, and the order was based on judgments passed by the High Courts.

2. Regarding the applicability of time limit for filing a refund claim under Rule 5 of Cenvat Credit Rules, the judge examined the Vodafone Cellular case and noted that it pertained to a rebate claim under a specific notification without a prescribed time limit. However, the present case involved a refund claim under a different notification that specified a time limit as per Section 11B of the Central Excise Act. The judge clarified that the relevant date for the present case was the date of raising the invoice, as the appellant was not required to pay any duty. Additionally, the judgment in Deepak Spinners Ltd. was based on a High Court judgment extensively discussed in another High Court case, indicating a higher authority than the Tribunal. Consequently, the judge found no error in the record and dismissed the ROM application.