2015 (11) TMI 107 - AT - Service Tax

Refund claim - Unutilized CENVAT Credit - Determination of Date of Export of service - Rule 5 - Period of limitation - Held that - export of service shall complete only when the (a) services is provided from India and use outside India (b) payment of such services is received by the service provider in convertible foreign exchange. In the present case it is undisputed fact that though the part of the services provided in the year 2007 and part of the services provided in the quarter April, 2008-June,2008 but remittance in convertible foreign exchange were admittedly received by the service provider during 5/8/2008 to 19/11/2008 therefore even applying Section 11B one year period expire on 5/8/2009 whereas the refund was admittedly filed on 15/4/2009 that is well within the one year time period as provided under Section 11B therefore the refund claim is not liable for rejection on time bar. Export of service is complete only when foreign exchange is received in India as per Export of Service Rules, 2005 (i). In the Section 11B, relevant date for refund of export of goods is date of export. Section 11B is made applicable for claiming refund under Rule 5 of the Cenvat Credit Rules as per condition 6 of Notification 5/2006. In case of export of Services, export is complete only when foreign exchange is received in India. Therefore relevant date of export of services is date of receipt of foreign exchange. In the present case all the four claims have been filed within 1 year from the date of receipt of foreign exchange and are therefore filed in time and cannot be held as time barred. - Lower appellate authority has also held that in the case of export of service the relevant date is the date when the assessee has received the payment of service exported and within one year from the date of receipt of the payment of service exported, the assessee is required to file the refund claim. It is a case of refund under Rule 5 in respect of export of services for which export has been defined in the Export of Service Rules, 2005. Section 11B only specifies one year period from the relevant date and relevant date is not same in respect of goods as well as services. Since the fact of the present case is different from the case of GTN Engineering (I) Ltd, 2011 (8) TMI 960 - MADRAS HIGH COURT the same is not applicable. In view of the above discussion, I find that Ld. Commissioner (Appeals) has rightly allowed the refund to the respondent. - Decided against Revenue.

Summary

Issues:
1. Determination of the relevant date of export of services for the purpose of claiming a refund under Rule 5 of the Cenvat Credit Rules, 2004.
2. Applicability of the limitation period provided under Section 11B in the case of a refund claim under Rule 5 of CCR, 2004.

Analysis:
1. The appeal concerned a refund claim filed by the respondent for the quarter April 2008 to June 2008. The issue revolved around the relevant date of export of services. The respondent argued that the export of services is completed only upon receipt of payment in convertible foreign exchange, as per Export of Services Rules, 2005. The remittance in foreign exchange for the services provided in 2007 and 2008 was received between August 5, 2008, and November 19, 2008. The Tribunal held that the refund claim filed on April 15, 2009, was within the one-year limitation period of Section 11B, thus not time-barred.

2. The Tribunal analyzed various judgments to determine the relevant date for calculating the time limit for granting a refund. It referred to the Export of Services Rules, 2005, which specify that the relevant date is when payment for the exported service is received in convertible foreign exchange. The Tribunal upheld the lower appellate authority's decision that the relevant date is the receipt of payment, and the refund claim must be filed within one year from that date. The Tribunal dismissed the Revenue's appeal, stating that the relevant date specified under Section 11B of the Central Excise Act, 1944, should be reckoned from the receipt of payment in convertible foreign exchange for export of services. The Tribunal differentiated cases of export of goods and services, emphasizing that the relevant date varies based on the nature of the transaction. The Tribunal upheld the lower appellate authority's decision to allow the refund to the respondent, dismissing the Revenue's appeal.

In conclusion, the Tribunal ruled in favor of the respondent, emphasizing that the relevant date for export of services is the receipt of payment in convertible foreign exchange, as per the Export of Services Rules, 2005. The Tribunal upheld the lower appellate authority's decision and dismissed the Revenue's appeal, stating that the refund claim was not time-barred and should be allowed as per the applicable legal provisions.