2013 (7) TMI 490 - AT - Service Tax

Refund of cenvat credit - Rule 5 of CCR - Period of limitation - whether claims filed by the assessees are time barred as held by lower authorities or in time as claimed by the assesse - Held that - All the four claims have been filed with 1 year from the date of receipt of foreign exchange and are therefore filed in time and cannot be held as time barred - for claiming refund under Rule 5 of the Cenvat Credit Rule 2004, output service is required to be exported in accordance with procedure laid down Export of Service Rule 2005 (as per condition 1 of the Appendix to Notification 5/2006) - Section 11B is made applicable for claiming refund under Rule 5 of the Cenvat Credit Rules as per condition 6 of Notification 5/2006 - In case of export of Services export is complete only when foreign exchange is received in India - relevant date of export of services is date of receipt of foreign exchange appeal allowed in favour of assessees.

Summary

Issues:
Whether claims filed by the appellants are time-barred as held by lower authorities or in time as claimed by the appellants.

Analysis:
The case involved four appeals by M/s Bechtel India Pvt. Ltd. against a common Order in Appeal passed by the Commissioner Central Excise (Appeal) Delhi. The appellants, providers of Consulting Engineers Service, filed refund claims for the period July 2005 to December 2005 under Rule 5 of the Cenvat Credit Rules. The original adjudicating authority rejected the claims citing time-bar under Section 11B of the Act and the inapplicability of Rule 5 to service providers before 14.03.2006. The Commissioner (Appeal) held that the appellants would have been entitled to refund even before the amendment but rejected the claims on the ground of time-bar, considering the date of export of service as the relevant date.

The main issue was whether the claims were time-barred. Rule 5 of the Cenvat Credit Rules allows for refund of Cenvat Credit for inputs or input services used in providing exported output services. The relevant Notification 5/2006 dated 14.03.2006 laid down conditions for such refunds, requiring the output service to be exported as per the Export of Service Rules 2005. The Export of Service Rules 2005 specified that the export of services is complete only when foreign exchange is received in India. Section 11B of the Central Excise Act defines the relevant date for refund of export of goods, and it was made applicable for claiming refunds under Rule 5 of the Cenvat Credit Rules.

The Tribunal held that the export of services is complete only when foreign exchange is received in India, making the date of receipt of foreign exchange the relevant date for export of services. As all four claims were filed within one year from the date of receipt of foreign exchange, they were considered filed in time and not time-barred. Therefore, the appeals were allowed in favor of the appellants.

This detailed analysis of the judgment highlights the key legal provisions, interpretations, and conclusions made by the Tribunal in resolving the issues raised in the case.