2017 (1) TMI 1362 - AT - Service Tax

Refund claim - Time limitation - For the period April 2011 to March 2014, the appellant availed CENVAT credit of service tax paid on input services used for providing output services exported outside India. Appellant filed refund application for the relevant period on 21.05.2014 - whether the provision of limitation mentioned in Section 11B of the Central Excise Act, 1944 is applicable for refund claims filed under Rule 5 of CCR, 2004? - Held that - there was an export of service and in the case of export of service, as per settled law, the refund under Rule 5 has to be filed before the expiry of one year from the date of receipt of proceeds of export of service - Learned Commissioner (A) directed the appellant to furnish the documents as required under the statutory provisions, before the adjudicating authority, who shall process the claim and shall pass appropriate speaking order after following the principles of natural justice - I do not find any infirmity in the impugned order passed by the learned Commissioner (A) and therefore impugned order upheld - appeal dismissed - decided against appellant.

Summary

Issues Involved: Application for condonation of delay in filing appeal, applicability of limitation under Section 11B of Central Excise Act for refund claims filed under Rule 5 of CCR, 2004.

Analysis:

1. Condonation of Delay in Filing Appeal:
The judgment begins with the consideration of an application seeking condonation of a 41-day delay in filing the appeal. The Judicial Member, after reviewing the reasons provided for the delay, decides to condone the delay, allowing the appeal to proceed.

2. Applicability of Limitation under Section 11B:
The core issue in the appeals is whether the limitation prescribed in Section 11B of the Central Excise Act, 1944 is applicable to refund claims filed under Rule 5 of CCR, 2004. The appellant argues that the limitation does not apply to the refund of CENVAT credit under Rule 5 of CCR, 2004. They cite compliance with conditions and limitations for claiming credit as per Notification No.27/2012. Reference is made to legal precedents supporting the appellant's position, including the decision in the case of mPortal (India) Wireless Solution Pvt. Ltd. vs. CCE. On the contrary, the learned AR defends the impugned order, emphasizing the need for compliance with statutory provisions and the requirement to file refund claims within one year from the date of receipt of proceeds of export of service. The AR relies on the decision of the Madras High Court in CCE vs. GTN Engineering Ltd., which links the relevant date for computing the one-year limitation to Rule 5 of CCR, 2004.

3. Decision and Rationale:
After hearing both parties and examining the records, the Judicial Member upholds the impugned order passed by the learned Commissioner (A). The Member finds no fault in the Commissioner's decision, dismissing both appeals. The judgment concludes by stating that the operative part of the order was pronounced in open court on a specific date.

In summary, the judgment addresses the condonation of delay in filing the appeal and delves into the complex issue of whether the limitation under Section 11B of the Central Excise Act applies to refund claims under Rule 5 of CCR, 2004. The analysis highlights the arguments presented by the appellant and the respondent, along with legal precedents cited to support their respective positions, leading to the dismissal of the appeals based on the decision rendered by the Judicial Member.