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2016 (2) TMI 609 - AT - Service TaxRefund of un-utilized cenvat credit - period of limitation - export of services - refund claim filed within one year from the end of relevant quarter - rule 5 of Cenvat Credit Rules 2004 - Held that - unless the entire quarter is completed the exporter cannot file his refund claim as the crucial documents like Bank Realization Certificate issued during the said quarter are required to be submitted along with the refund claim. Also the formula prescribed in the new Rule 5 of the CCR requires the use of Net CENVAT credit which can be arrived at only at the end of the relevant quarter Notification provides for filing of refund claim within specific period that would be applicable and the provisions of Section 11B of Central Excise Act 1944 which is sought to be relied upon by the AR as well as in grounds of appeal is not applicable as refund claim is filed by the respondent is not under Section 11B of the Central Excise Act; accordingly I do not find any error in decision of the first appellate authority as well as the Tribunal no error apparent on the face of record; on this count i.e. that the claim is to be filed within one year and after end of the quarter. - Refund cannot be denied - Decided against the revenue.
Issues:
1. Error in recording the date of filing the refund claim. 2. Interpretation of the relevant date for filing refund claims under new Rule 5 of Cenvat Credit Rules, 2004. Issue 1: Error in recording the date of filing the refund claim The Revenue filed an application for Rectification of Mistake (ROM) to correct an error in Order No. A/935-936/15/SMB dated 13.4.2015, where the Bench had recorded that the refund claim was filed within one year from the receipt of FIRC. However, it was pointed out that the refund claim was actually filed beyond one year from the date of receipt of FIRC. The error was rectified to reflect the correct timeline. Despite this, it was noted that the first appellate authority had correctly reduced the export turnover sales from the total turnover, resulting in a nil effect due to the contra entry. Therefore, the rectification of this error was deemed of academic interest. Issue 2: Interpretation of the relevant date for filing refund claims under new Rule 5 of Cenvat Credit Rules, 2004 The first appellate authority had made findings on whether a refund claim should be filed within one year from the end of the quarter. It was emphasized that the exporter cannot file a refund claim until the entire quarter is completed, as crucial documents like Bank Realization Certificates issued during the quarter are required. The authority highlighted that the relevant date for filing a refund claim under new Rule 5 of the CCR is the last date of the relevant quarter. This interpretation was deemed in line with the law, as the provisions of Section 11B of the Central Excise Act, 1944 were found not applicable in this case. The Tribunal upheld the decision of the first appellate authority, concluding that there was no error in the interpretation that the claim should be filed within one year after the end of the quarter. In conclusion, the application for Rectification of Mistake was disposed of, with the errors in recording the date of filing the refund claim corrected, and the interpretation of the relevant date for filing refund claims under new Rule 5 of Cenvat Credit Rules, 2004 clarified in accordance with the law.
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