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TMI Blog2015 (11) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... 008 to 19/11/2008 therefore even applying Section 11B one year period expire on 5/8/2009 whereas the refund was admittedly filed on 15/4/2009 that is well within the one year time period as provided under Section 11B therefore the refund claim is not liable for rejection on time bar. Export of service is complete only when foreign exchange is received in India as per Export of Service Rules, 2005 (i). In the Section 11B, relevant date for refund of export of goods is date of export. 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. Therefore relevant date o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeals) Central Excise Customs, Goa, wherein the Ld. Commissioner(Appeals) dismissed Revenues appeal and upheld the order in original. 2. The facts of the case is that the respondent is engaged in providing the service of research and development to foreign clients, accordingly they are registered with the service tax department. Respondent have paid service tax on the input service and Central Excise duty on input used in the rendering output service. Since the respondent are not in position to utilize the credit they have filed refund claim with the department under Rule 5 of the Cenvat Credit Rules, 2004. The refund claim was for the Quarter 1st April 2008 to 30th June, 2008 in respect of export made starting from invoice No. RPIN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso provided in the quarter April, 2008 June, 2008. He submits that even in respect of these two invoices though the services was provided in the year 2007 but invoices of such services raised in the quarter April, 2008 June, 2008 only. He further submits that in case of export of service, the export shall complete not only at the time of providing the services and not even under date of issuance of invoices but only when remittance against such export are received in convertible foreign exchange. He refers to the Export of Services Rules, 3(2), according to which the export of services is completed when the following condition are fulfilled: (a) Services provided from India and use outside India. (b) Payment of such services recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said two invoices only. Raising all the invoices as well as services pertains to the period quarter April, 2008 June, 2008 in respect of such claims even the contention of the Revenue is not correctly applicable. Now issue to be decided is the relevant date of export of services and whether the refund is beyond the limitation provided under Section 11B which is applicable in case of refund claim under Rule 5 of CCR, 2004. First of all it is to be ascertained what is the date of export in respect of export of services for which I refer Rule 3(2) of Export of Services Rules, 2005, which is reproduced below: [(2) The provision of any taxable service specified in sub-rule (1) shall be treated as export of service when the following conditio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Cenvat Credit Rules, 2004, output is required to be exported in accordance with procedure laid down in Export of Service Rules, 2005 (as per condition 1 of the Appendix to Notification 5/2006), once service is exported refund claim can be filed subject to limitation as prescribed under Section 11B of the Act. In the instant case export of service is complete only when foreign exchange is received in India as per Export of Service Rules, 2005 (i). In the Section 11B, relevant date for refund of export of goods is date of export. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rst issue relying on the judgment of the Bombay Bench of the Tribunal in the case of C.C.E., Pune -I v. Eaton Industries P. Ltd. 2011 (22) S.T.R. 223 (Tri.- Mumbai) = 2011-TIOL-166-CESTAT-MUM to hold that the relevant date for calculating the time limit for grant of refund would be the date of receipt of consideration and not the date when the services were provided. If the date of receipt of consideration is reckoned then the claims are perfectly within time limit, and if date of rendering services is taken then obviously most of the claims would be time barred. The Tribunal has held that the relevant date would be the date of receipt of consideration and, when such decision has not been appealed against nor it has been reversed or overrul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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