2016 (10) TMI 63 - AT - Service Tax

Refund claim - service tax paid on input service credit taken during the period October 2012 to December 2012 - denial of refund on renting of immovable property service on account of non-registration of the premises - Held that - in the case of KLA Tencor Software Private Limited Vs CST, Chennai 2016 (6) TMI 447 - CESTAT CHENNAI , it was held that registration is not a mandatory condition to avail refund under the Notifications prescribed by placing reliance on the ruling of mPortal Wireless Solutions Private Limited Vs CST, Bangalore 2011 (9) TMI 450 - KARNATAKA HIGH COURT . Therefore, the refund of CENVAT Credit on renting of immovable property is allowed, by following the ruling of Karnataka High Court. Refund claim - denial of refund claim on the ground of imitation of time - Held that - Commissioner (Appeals) dealt the limitation issue in depth and passed a detailed order and held that inasmuch as the refund is related to Cenvat credit taken during the given period and the same shall be taken till the last day of the given period, namely the quarter, the claim for refund can only be filed after the last date of the respective quarter and the relevant date is the date of export and are entitled in terms of Notification No. 27/2012 dated 18.06.2012 read with Section 11 B of CEA, 1944, and the refund claim is not hit by limitation. As per Rule 5 of CCR, 2004, in case of export of services, export is complete only when foreign exchange is received in India. This aspect has not been brought out by both the authorities below. Hence, the matter is remanded to the adjudicating authority with the direction to verify the date of receipt of foreign exchange received in India to determine the relevant date of export to decide the limitation aspect. - Appeal disposed of

Summary

Issues: Refund claim rejection based on ineligible input services and limitation period calculation.

Analysis:
1. The appellant, a service provider, filed a refund claim for service tax paid on input service credit taken during a specific period. The Asst. Commissioner of Service Tax granted a partial refund and rejected the balance amount due to ineligible input services and limitation issues.

2. The Commissioner (Appeals) set aside the rejection of the refund claim as time-barred, leading to the Revenue's appeal before the Tribunal. The Revenue argued that the rejection was valid due to ineligible input services and limitation constraints.

3. The Revenue contended that the relevant date for the refund claim of export services should be the last day of the quarter for which the refund is claimed, as per the amended definition of "Export turnover." They emphasized that the date of the invoice should be considered, not the date of export, citing a specific notification to support their stance.

4. On the other hand, the respondent-assessee argued that the relevant date should be the receipt of foreign exchange, not the date of export. They referenced decisions from other Tribunals supporting their position and requested a remand to verify the date of receipt of foreign exchange for the limitation assessment.

5. The Tribunal analyzed the case, noting that the refund claim related to Cenvat credit taken during a specific period should be filed after the last day of the respective quarter. The relevant date for export services was determined to be the date of export, as per the applicable notification and legal provisions.

6. The Tribunal found support in the case laws cited by the respondent, indicating that the limitation period should be calculated based on the receipt of foreign exchange. They highlighted a previous case where a similar matter was remanded for verification based on a recent notification, leading to a remand in this case as well for verifying the date of receipt of foreign exchange.

7. Consequently, the Tribunal remanded the appeal to the adjudicating authority to determine the relevant date of export by verifying the receipt of foreign exchange in India for assessing the limitation aspect, thereby disposing of the stay application as well.