2018 (4) TMI 107 - AT - Central Excise

Refund of unutilized CENVAT credit - rejection on the ground of time bar - Section 11B of the CEA - Held that - the relevant date would be the date of receipt of the consideration by the service provider in foreign currency - there are no actual dates of receipt of the foreign currency available on record in which case the matter is remanded to the original adjudicating authority for re-decision after verifying the actual date of foreign currency - appeal allowed by way of remand.

Summary

Issues:
1. Rejection of refund claims on the ground of time bar under Section 11B of the Central Excise Act.
2. Determination of the relevant date for refund claims.
3. Applicability of the date of receipt of foreign exchange as the relevant date for limitation in refund claims.

Analysis:
1. The appellants, engaged in export, filed refund claims for unutilised cenvat credit under Notification No. 5/2006-CE. The lower authorities rejected the claims as time-barred under Section 11B, considering the relevant date as the date of actual export. The Commissioner (Appeals) cited provisions stating the relevant date as the date of export for goods exported out of India. The appellants argued for the date of receipt of foreign exchange as the relevant date for limitation, citing relevant case laws.

2. The Tribunal considered decisions like CST, Goa vs. Ratio Pharma India and Bechtel India Pvt. Ltd. vs. Commissioner, which held the date of receipt of foreign exchange as the relevant date for refund claims. The Tribunal also noted the Andhra Pradesh High Court and Madras High Court decisions supporting this view. In light of these precedents, the Tribunal held that the relevant date for refund claims should be the date of receipt of consideration by the service provider in foreign currency.

3. Consequently, the Tribunal ruled in favor of the assessee, remanding the matter to verify the actual date of foreign currency receipt. The original adjudicating authority was tasked with re-decision based on this finding. Additionally, the authority was instructed to examine the appellant's plea regarding utilizing the credit for output tax liability if the refund is found time-barred. The Tribunal disposed of all appeals accordingly, emphasizing the determination of the relevant date for refund claims based on the date of foreign exchange receipt.

Conclusion:
The judgment addressed the rejection of refund claims on time-bar grounds, clarifying the determination of the relevant date for limitation in refund claims. By considering case laws and precedents, the Tribunal established the date of receipt of foreign exchange as the relevant date for such claims, highlighting the need for verification and re-decision by the adjudicating authority.