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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 ..... e 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/EOU/2008/16 dated 21/4/2008. The refund claim for an amount of Rs. 5,97,244/-, was filed on 15/4/2009. The Asstt. Commissioner vide order-in-original No. ACCEX(Div. II)93-R/11-12 dated 9/6/2011 sanctioned the refund claim. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 received by the service provider in convertible foreign exchange. It is his submission that unless both the conditions are fulfilled the export is not completed. In the present case though certain services were provided in the year 2007 and remainin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 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 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. Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted 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 received in India. Therefore relevant date of export of services is date of receipt of foreign exchange. In the present case all the four claims have been filed within 1 year from the date of receipt of foreign excha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime 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 overruled by any superior forum, the said judgment is binding. The learned CESTAT recorded no contrary decision. However, learned counsel for the appellant - Revenue asserts before us that a contrary decision has been rendered in the year 2014 by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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