2016 (9) TMI 377 - AT - Service Tax

Rejection of refund claim - Rule 5 of CCR, 2004 - Notification No. 27/12-CE(N.T.) dated 18/6/2012 input services export of output services - realization of foreign convertible currency - Section 11B of the Act - whether export turnover shall include the receipt of foreign convertible currency as per the FIRC during the particular quarter or as per the date of invoice? Held that - as per the FIRC the payment in convertible foreign currency was received during the relevant quarter therefore the same should be considered as export turnover during the relevant quarter only. There is no provision in the definition of turnover of services that the export turnover should be taken as per the date of invoice. Admissibility of CENVAT credit - Input services - Event Management Services - Insurance Auxiliary Services Held that - judgements of the cases Dell International Services India (P.) Ltd. Vs. Commissioner Central Excise (Appeals), Bangalore 2009 (6) TMI 447 - CESTAT, BANGALORE and CCE & ST, LTU, Bangalore Vs Micro Labs Ltd. 2011 (6) TMI 115 - KARNATAKA HIGH COURT followed these services considered as input service - Cenvat credit is admissible on these services. Rent-a-cab services - Refund availed in excess - Telecommunication/Internet Telecommunication Service - Chartered Accountant s Service Held that - assesse not entitled to refund. Period of limitation - whether limitation of one year should be reckoned from the date of FIRC or from the end of particular quarter? Held that - export is completed as on date of FIRC but Rule 5 provides for filing of refund on quarterly basis i.e. only after completion of the quarter. In this situation refund can only be filed after last date of the quarter. If this is so, period of one year provided under Section 11B cannot start on any date before end of the quarter, it has to be reckoned from next date of quarter ends - assessee has filed refund claim within one year from end of the quarter therefore it is within limitation refund not time bar. Matter remanded to original adjudicating authority for computation of refund appeal disposed off.

Summary

Issues:
1. Refund calculation based on export turnover and FIRC date
2. Admissibility of Cenvat credit on specific services
3. Limitation period for filing refund claims

Analysis:

(a) Refund Calculation:
The dispute revolves around whether the export turnover for refund calculation should be based on the receipt of foreign convertible currency (FIRC) during a specific quarter or as per the date of the invoice. The appellant argues that FIRC received during the relevant quarter should be considered as export turnover for the refund computation, contrary to the Commissioner's stance that the date of invoice should be used. The tribunal rules in favor of the appellant, emphasizing that the definition of turnover of services does not mandate using the date of the invoice, thereby supporting the appellant's claim.

(b) Cenvat Credit Admissibility:
Regarding the admissibility of Cenvat credit on various services, the tribunal refers to past judgments to determine the eligibility. Event management services and group medical insurance for employees are deemed admissible based on previous tribunal decisions. However, Cenvat credit for rent-a-cab services and excess credit on specific services is denied, as conceded by the appellant's counsel. Consequently, the tribunal dismisses the appeal related to rent-a-cab service.

(c) Limitation Period for Refund Claims:
The issue of the limitation period for filing refund claims under Rule 5 is addressed. The Revenue argues that the period should commence from the date of FIRC, while the appellant contends it should start from the end of the quarter. The tribunal upholds the Commissioner's decision that the limitation period should be calculated from the end of the quarter, aligning with the statutory provision for quarterly filing of refunds. As the appellant filed the refund claim within one year from the end of the quarter, the tribunal deems it within the limitation period, dismissing the departmental appeals.

In conclusion, the tribunal remands one appeal to the original adjudicating authority for recalculating the refund based on the observations made. The other appeals are dismissed, including the Revenue's appeals, as the refund is deemed not time-barred. The stay application filed by the Revenue is also dismissed as infructuous.