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TMI Blog2014 (6) TMI 593X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants are providing business auxiliary service and management consultancy services. Thus the export of service takes place at the time or issuing invoice. The payment condition is only to ensure that the service provider receives the payment in convertible foreign exchange so as to get the benefit of service tax. The date of receipt of such payment is not relevant for determining the time of export. In view of the above analysis, I hold that the relevant date for determining the period of limitation will be the date of export of services or the date when the invoices are raised. Regarding various input services on which refund was rejected on the ground of no nexus with the output service, various input services was found as allowable and some of them are not eligible - adjudicating authority to allow the refund as per the order - Decided partly in favour of assessee. - Appeal No.ST/82/11-Mum - Final Order No. A/918/2014-WZB/C-IV(SMB) - Dated:- 6-5-2014 - P K Jain, (T) For the Appellant : Shri Prasad Paranjape, Adv. For the Respondent : Shri Rakesh Goyal, Addl. Commissioner (AR) JUDGEMENT Per: P K Jain: The brief facts of the case are that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) (9) Vadofone Cellular Ltd. vs. CCE, Pune. III dtd 17.1.2014 (10) Deepak Spinners Ltd. vs. Commr. of C.Ex, Indore - 2014 (302) E.L.T. 132 (Tri.-Del.) 3. Ld. A.R. on the other had submitted that the whole issue about the time limit has been examined by the Hon'ble Madras High Court in the case of CCE, Coimbatore vs GTN Engineering (I) Ltd. - 2012 (281) ELT 185 (Mad.). Ld. A.R. also mentioned that the said judgment of the Hon'ble Madras High Court takes into account the judgement of Madhya Pradesh High Court in the case of STI India Ltd. vs. Commissioner - 2009 (236) ELT 248 (M.P.) as also the Hon'ble Gujarat High Court judgment in the case of CCE vs Swagat Synthetics (supra). Ld. A.R. further stated that Notfn. No.5/2006-CE(NT) clearly prescribed in clause (6) that the refund claim is to be filed before the expiry of the period specified in section 11 B of the Central Excise Act, 1944. Once the Notification prescribes a condition for grant of refund, the same has to be implemented and applied. Ld. A.R. further drew my attention to definition of relevant date in clause (B) to Explanation under Sec.11B. In the said clause it is clearly stated that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise Act deals with claim of refund/rebate of duty. Sec.11B (i) provides the limitation period of one year. Further, Clause (B) to Explanation in Sec. 11B (B) defined the relevant date' from which the period of one year is to be computed. The said explanation explains relevant date for different situation. However, situations covered are for export of goods. The situation relating to export of services is not specifically covered by any of the sub-clause of Clause (b) of Explanation. However, sub-clause (a) is the clause which is nearest to the situation relevant for the export of services. The relevant clause reads as under:- (B) relevant date means (a) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods, - (i) if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, or (ii) if the goods are exported by land, the date of dispatch of goods pass the frontier, or (iii) if the goods are exported by post, the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities, the rejection of the claim for refund is well justified and the Tribunal ought not to have remanded the matter for that reason. 9. On the other hand, the learned counsel for the respondent would submit that thought the provisions of Section 11B is not strictly made applicable to the refund of CENVAT credit as it applies only for the claim of duties and interests if any, paid on such duty, in the wake of the provisions of sub-rule (5) and the notification as such, claims could be made. Nevertheless, in the absence of any notification in regard to the relevant date as defined in Section 11B(5)(B) of the Act, the rejection of the claim for refund on the ground of period of limitation is bad. 10. The learned counsel would draw our attention to the above provision defining the relevant date and contended that none of the clauses contained therein would apply for the claim for refund on CENVAT credit. In the absence of the same, the finding of the CESTAT requires no interference. As far as the other findings for remittal viz., the respondent had to produces materials, is concerned, he would submit that the respondent requested the authorities to peruse t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or (ii) service tax on output service and where for any reason such adjustment is not possible, the manufacturer or provider of output service shall be allowed refund of such amount subject to such safeguards, conditions and limitations, as may be specified, by the Central Government, by notification. 13. In terms of the said rule, the Central Government should notify as to the safeguards, conditions and limitations. Accordingly Notification No. 5/2006-C.E. (NT.), dated 4-3-2006 has issued Clause 6 appendix to the notification reads as under: 6. The application in Form A, along with the prescribed enclosures and the relevant extracts of the records maintained under the Central Excise Rules, 2002, CENVAT Credit Rules, 2004. or the Service Tax Rules, 1994, in original are filed with the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, before the expiry of the period specified in Section 11B of the Central Excise Act. 1944 (1 of 1944) . 14. The said notification prescribes a period of one year, as provided under section 11B of the Central Excise Act, for the purpose of making application i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be allowed to be utilised by the manufacturer towards payment of duty of excise on any final products cleared for home consumption of for export on payment of duty and where for any reason such adjustment is not possible, the manufacturer shall be allowed refund of such amount subject to such safeguards, conditions and limitations as may be specified by the Central Government by notification in the Official Gazette. The said rule does not prescribe any time-limit. In the absence of such prescription as to the limitation the Gujarat High Court has held that the claim of refund could not be rejected on the ground of limitation. 17. The learned counsel would also rely upon a Judgment of Madhya Pradesh High Court at indore reported in 2009 (236) E.L.T 248 (M.P.) [STI India Ltd. v. Commissioner of Customs and Central Excise, Indore]. In that case, though the Court has held that Clause 6 of Appendix read with Section 11B of Central Excise Act, 1944 cannot be made applicable in so far as the period of limitation is concerned when a claim for CENVAT credit is made, a reading of the said provision shows that there is no reference to Rule 5. With great respect, we are not in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... treated as export of service when the following conditions are satisfied, namely - (a) such service is provided from India and used outside India; and (b) Payment for such service is received by the service provider in convertible foreign exchange. Explanation - For the purposes of this rule India includes the designated areas in the continental shelf and Exclusive Economic zone of India, as declared by the Notifications of the Government of India in the Ministry of External Affairs No. SO 429 (E), dated the 18th July 1986 and SO 643(E). dated the 19 September, 1996. 4. Export without payment of service tax. - Any service, which is taxable under clause (105) of section 65 of the Act, may be exported without payment of service tax. 9. In Rule 3(2), clause (b) is not to be read in isolation but has to be read with the opening part of Rule 3(2). The opening part of Rule 3(2) states that the conditions are to be satisfied to treat provision of any taxable service as export of service. One of the conditions is that the payment for such service is received in convertible foreign exchange. Such conditions are not unknown in excise and customs adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f these judgments. 11. In addition to above, refund of ₹ 5,268/- relating to Custom House Agent services is denied on the ground that the appellants have failed to establish that these services are used in providing the output services exported and there is no supporting C.A. Certificate The appellants have explained that the said service is utilized for clearance of import consignment and the said goods were used for purpose of rendering of services. In view of this position, the appellants are entitled to the said refund. Another refund of ₹ 672/- on meal coupons is disallowed on the ground that the appellants have failed to establish that these services are used in providing the output services exported. The appellants have explained that the service is procured and used in relation to business and in view of the Bombay High Court's judgment in the case of CCE vs Ultratech Cement Ltd - 2010 (20) STR 577 (Bom) = they are eligible. In view of this position, the appellants are entitled to the refund of the same. A refund of ₹ 1,322/- is claimed in respect of Air Travel Agent services. The appellants have explained that the Overseas traveling is necessary in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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