2016 (11) TMI 874 - AT - Service Tax

Whether the turnover in respect of services provided/exported prior to 1.4.2012 should be deducted from the export turnover as well as total turnover for arriving at the ratio for eligible refund under Rule 5 of the Cenvat Credit Rules 2004? - Held that - The amended rule is applicable only for the exports taken place on or after 1st April 2012. The Ld. Commissioner has deducted the value of 10 invoices from the export turnover as well as from the total turnover of quarter April 2012 to June 2012, for the reason that exports made before 1.4.2012 is governed by the un amended Rule which shall not apply retrospectively on the export made prior to 1.4.2012. Therefore in my considered view the Ld. Commissioner has rightly deducted the value of 10 invoices pertaining the period prior to 1.4.2012 from export turnover as well as total turnover for the period April - June 2012. Limitation bar - Held that - when in the Notification issued under Rule 5 it is a condition that the assessee has to file refund only once in a quarter. Accordingly, he is not allowed to file refund before quarter is completed, in that case, the relevant date for computing 1 year for the purpose of Section 11B shall be from 30.6.2012. In the present case, the respondent filed refund claim on 26.4.2012 i.e. within 1 year from 30.6.2012, hence the same is clearly within 1 year as provided under Section 11B. The Ld. Commissioner has rightly held that the refund is within the stipulated time period of 1 year. The Order-in-Original No. R/459/STC/PIII/2013, dated 23.0902013 passed by the Deputy Commissioner, Service Tax Cell, Pune-III Commissionerate is modified and further refund of ₹ 40,13,161/- is allowed with consequential relief. The present appeal is allowed in toto - appeal dismissed - decided against Revenue.

Summary

Issues:
1. Deduction of turnover for services provided/exported prior to 1.4.2012 for eligible refund under Rule 5 of Cenvat Credit Rules 2004.
2. Timeliness of refund claim filed on 26.4.2013 for consideration received on 9.4.2012.

Analysis:

Issue 1:
The primary issue revolves around whether turnover for services provided/exported before 1.4.2012 should be deducted from export turnover and total turnover for refund calculation under Rule 5 of Cenvat Credit Rules 2004. The appellant argued that payment received post-1.4.2012 should not affect export turnover calculation, while the respondent contended that pre-1.4.2012 services are not governed by the amended Rule 5. The Commissioner (Appeals) upheld the respondent's argument, citing the unamended Rule's applicability to pre-1.4.2012 exports. The Tribunal concurred, stating that the amended rule only applies to exports post-1.4.2012, thus supporting the deduction of turnover for pre-1.4.2012 services. The Tribunal also emphasized that the refund claim was correctly filed within the stipulated time, as per Section 11B.

Issue 2:
The second issue concerns the timeliness of the refund claim filed on 26.4.2013 for consideration received on 9.4.2012. The appellant contended that the claim was time-barred under Section 11B, requiring claims to be filed within one year. However, the respondent argued that the claim was within the time limit, considering the quarterly filing requirement and the condition to file one claim per quarter. The Commissioner (Appeals) agreed with the respondent, stating that the claim was within the one-year period from the relevant quarter end. The Tribunal supported this decision, highlighting the specific conditions under which the claim was filed and concluding that the refund was well within the stipulated time.

In conclusion, the Tribunal upheld the Commissioner (Appeals)' detailed findings on both issues, affirming the allowance of the refund with consequential relief. The Tribunal found no errors in the impugned order and dismissed the Revenue's appeal, pronouncing the judgment on 22/03/2016.