2017 (10) TMI 17 - HC - Central Excise

100% EOU - Refund of unutilised CENVAT credit - time limitation - the CESTAT Bangalore, relying on the judgment in Eaton s case 2010 (12) TMI 71 - CESTAT, MUMBAI , held that the relevant date for filing the refund application under Sec.11B of the Excise Act would be the date of receipt of consideration for service rendered and not the date when the services were provided. This finding of the CESTAT is challenged in the appeals on the main plank of argument that there is a contrary decision reported in M/s. Affinity Express India Pvt. Limited vs. Commissioner of Central Excise, Pune-I 2014 (6) TMI 593 - CESTAT MUMBAI - the point is whether M/s.Affinity s case will have any impact on the present appeals? - Held that - The Larger Bench of CESTAT, West Zonal Bench, Mumbai having noticed the decision of a Division Bench of Tribunal, Delhi in Bechtel India Pvt. Ltd. vs. Commissioner of Central Excise, Delhi 2013 (7) TMI 490 - CESTAT NEW DELHI to the effect that the refund can be claimed after foreign exchange was received in India in respect of export of service, held that in view of the Division Bench decision and as no contrary decision was brought to its notice, no reference lies to the larger Bench. Thus in essence, the decision in Bechtel s case being a decision rendered by Division Bench was approved and held to prevail over the decision in M/s.Affinity s case relied upon by the appellant. As such, the decision in M/s.Affinity s case will not have any impact on the present appeals. Whether CESTAT is correct in holding that the assessee is eligible to claim of refund of CENVAT credit on construction service relying on case of Infosys Ltd. 2014 (3) TMI 695 - CESTAT BANGALORE ? - Held that - It should be noted that the appellant in the Grounds of Appeal mentioned that as against the Infosys Ltd. s case (2 supra), the department filed appeal before the Hon ble Apex Court and the same is pending but failed to produce copy of the Grounds of Appeal or any stay order granted by Hon ble Apex Court staying the judgment in Infosys Ltd. s case. It is also not known whether a final order is passed by the Apex Court in the said alleged appeal. In these circumstances, we can only uphold the decision of the CESTAT, Bangalore relying on Infosys Ltd. s case. This point is accordingly answered against the appellant. Whether the Tribunal is correct in remanding the matter with regard to the claim of refund of CENVAT credit on other services such as courier service, repair or maintenance services, telephone service, rent-a-cab service, management consultant service, chartered accountant service etc, since the said services are not having nexus with their output services i.e Consulting Engineering Service which was exported online? - Held that - This point is concerned, the CESTAT, Bangalore only remanded the matter to the original adjudicating authority to consider the other refund claims afresh. As such, we do not find any infirmity or irregularity therein. The appellant can put-forth its objections if any with regard to those claims and the original adjudicating authority can pass an order on merits with regard to the other claims. Accordingly this point is answered. Appeal dismissed - decided against appellant.

Summary

Issues involved:
1) Interpretation of relevant date for filing refund application under Section 11B of the Excise Act.
2) Eligibility of CENVAT credit on construction services.
3) Remand of refund claims on other services by CESTAT.

Interpretation of relevant date for filing refund application under Section 11B of the Excise Act:
The batch of appeals involved a dispute regarding the relevant date for filing refund applications under Section 11B of the Excise Act. The CESTAT, Bangalore held that the relevant date is the receipt of consideration for services rendered, not the date of service provision. This decision was challenged based on a contrary ruling in another case. The appellant cited M/s. Affinity Express India Pvt. Limited vs. Commissioner of Central Excise, Pune-I, arguing for a different interpretation. However, various conflicting decisions by different tribunals were discussed, ultimately upholding the decision based on Bechtel India Pvt. Ltd. vs. Commissioner of Central Excise, Delhi, which prevailed over the appellant's cited case.

Eligibility of CENVAT credit on construction services:
Regarding the eligibility of CENVAT credit on construction services, the CESTAT, Bangalore relied on Infosys Ltd.'s case, where the admissibility of CENVAT credit for various services was discussed. The CESTAT allowed the credit for construction services but remanded other claims for reconsideration by the original adjudicating authority. The appellant raised concerns about an appeal filed by the department against Infosys Ltd.'s case pending in the Apex Court but failed to provide relevant documents. As a result, the decision was upheld based on Infosys Ltd.'s case.

Remand of refund claims on other services by CESTAT:
The CESTAT remanded the matter concerning refund claims on services like courier, repair, telephone, etc., to the original adjudicating authority for fresh consideration. The court found no irregularity in this decision and allowed the appellant to raise objections during the reconsideration process. Consequently, this point was answered in favor of the CESTAT's decision to remand the claims.

In conclusion, the High Court dismissed the batch of appeals as they found no merit in the arguments presented. The court upheld the decisions made by the CESTAT, Bangalore regarding the interpretation of relevant dates for refund applications, eligibility of CENVAT credit on construction services, and the remand of refund claims on other services. No costs were awarded, and pending miscellaneous applications were closed as a result of the judgment.