2017 (10) TMI 703 - AT - Service Tax

Refund claim - limitation period - Rule 5 of CCR, 2004 - what is the relevant date to be adopted for the purpose of calculating the limitation period of one year? - Held that - the issue is no more res integra and stands settled by the Tribunal s decision in the case of M/s. Bechtel India Pvt Ltd. Vs Commissioner of Service tax 2013 (7) TMI 490 - CESTAT NEW DELHI , wherein the relevant date for determining limitation was determined as the date of receipt of foreign exchange - appeal allowed - decided in favor of appellant.

Summary

Issues:
Relevant date for calculating limitation period of one year for refund claim under Rule 5 of Cenvat Credit Rules, 2004.

Analysis:
The appellant, engaged in providing services under "Consulting Engineering Service" and "Man-power Recruitment and Supplier Agency Services," filed a refund claim of ?13,19,415 for the period Jan '15 to Mar. '15 under Rule 5 of the Cenvat Credit Rules, 2004. The refund was partially allowed, and the balance claim was rejected on the ground of limitation, citing section 11B of the Central Excise Act, which allows a one-year time limit from the relevant date to claim refunds. The dispute centered around determining the relevant date for calculating the time-limit - whether it should be the date of the export invoice or the date when foreign exchange is received by the exporter. The original adjudicating authority and the Commissioner (Appeals) upheld the date of the export invoice as the relevant date, leading to the present appeal.

The main issue to be decided was the relevant date for calculating the limitation period of one year for the refund claim. The Commissioner (Appeals) had initially ruled in favor of the appellant, stating that the relevant date should be when the exporters receive foreign exchange for the services provided, citing a clarificatory notification. However, in a subsequent order, the Commissioner (Appeals) changed stance, asserting that the notification would only apply from its issuance date, and the relevant date should be the date of the export invoice. This contradictory approach by the Commissioner (Appeals) raised questions.

The Tribunal referred to previous decisions in similar cases, including M/s. Bechtel India Pvt Ltd. Vs Commissioner of Service tax and Commissioner of Service Tax, Goa Vs Ration Pharma India Pvt Ltd., where the relevant date for determining limitation was held to be the date of receipt of foreign exchange. Citing these precedents, the Tribunal set aside the impugned order and allowed the appeal, providing consequential relief to the appellants. The decision was based on the settled interpretation that the relevant date for calculating the limitation period should be the date of receipt of foreign exchange, as established in previous Tribunal judgments.