2018 (5) TMI 1620 - AT - Service Tax

Refund of unutilized CENVAT credit - time limitation - Section 11B of the Central Excise Act - Held that - Larger Bench in the case of CCE &CST, Bangalore Vs. Span Infotech (India) Pvt. Ltd. 2018 (2) TMI 946 - CESTAT BANGALORE , has unanimously held that the relevant date for the purposes of deciding the time limit for consideration of refund claim u/r 5 of CENVAT Credit Rules may be taken as the end of the quarter in which the FIRCs are received in cases where refund claims are filed on a quarterly basis - the appeal needs to be remanded back to the original authority to dispose of the refund claim - appeal allowed by way of remand.

Summary

Issues:
Appeal against order dismissing claim on limitation under Section 11B - Relevant date for computation of time limit for refund claim under CENVAT Credit Rules - Applicability of judgment on export of goods to export of services - Divergent views on relevant date - Larger Bench decision on relevant date for refund claim under Rule 5 of CENVAT Credit Rules.

Analysis:
The appellant filed an appeal against the order passed by the Commissioner (Appeals) dismissing the appeal on limitation under Section 11B. The appellant, a service provider under 'Business Auxiliary Services,' filed a refund claim for unutilized CENVAT credit for a specific period, providing all necessary details and documents. The claim was rejected by the original authority on the grounds of limitation under Section 11B. The Commissioner (Appeals) upheld the decision, relying on the judgment of the Madras High Court regarding the relevant date for computation of one year under Section 11B. The appellant argued that the judgment cited by the Commissioner (Appeals) was not applicable to the present case as it pertained to the export of goods, not services. The appellant highlighted conflicting views on the relevant date for computation of the time limit, leading to the constitution of a Larger Bench to address the issue.

The appellant contended that the relevant date for the time limit should be the date of receipt of consideration, not the date of the invoice, citing decisions in favor of the assessee. The Larger Bench, in the case of CCE & CST, Bangalore Vs. Span Infotech (India) Pvt. Ltd., clarified that the end of the quarter in which the FIRCs are received could be considered as the relevant date for refund claims filed on a quarterly basis. The Revenue defended the impugned orders, arguing that the relevant date for the refund claim should be the date of the first export invoice during the claim period, as per Notification No.27/2012 and the judgment of the Madras High Court.

Considering the clarification provided by the Larger Bench on the relevant date for computing the period of one year for refund claims, the Judicial Member remanded the appeal back to the original authority for disposal in accordance with the Larger Bench decision. The appeal was disposed of by way of remand to ensure compliance with the decision of the Larger Bench.