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TMI Blog2015 (11) TMI 975X X X X Extracts X X X X X X X X Extracts X X X X ..... ty Express India Pvt. Ltd." was engaged in providing taxable services under the category of "Business Auxiliary Services" and "Management Consultancy Services". The Appellant had filed refund claim of Rs. 26,19,979 for period January 2009 to March 2009, under Rule 5 of CENVAT Credit Rules, 2004 read with Notification No. 05/2006- CE (NT) dated 14.03.2006 as they were not in a position to utilize the input service credit availed, against the services exported during the said period. The Ld. Assistant Commissioner on examining the refund claim allowed the refund of Rs. 4,94,502/- and rejected the refund claim for the balance amount. 2.1 Aggrieved by the said Order-in-Original the Appellant filed an appeal before the Ld. Commissioner (Appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... background if one looks at clause (B) to the Explanation appended to section 11B of the Central Excise Act, 1944 none of the sub-clauses therein would apply to determine the relevant date for refund filed under Rule 5 of Cenvat Rules. In other words, Notification No.5/2006 (supra), does not throw any light on the date from which the limitation of Section 11B has to be reckoned. In view of this he submits that no time limit should apply for the refund claim of Rule 5 of the Cenvat Rules. He supports his contention with various case laws including that of Deepak Spinners Ltd. vs. CCE, Indore - 2014 (302) ELT 132 and Elcomponics Sales Pvt. Ltd. vs. CCE, Noida 2012(279) ELT 280 and Global Energy Food Industries vs. CCE, Ahmedabad 2010 (261) ELT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at these services are used for providing their output service. He also further submits that it is not Revenue's case that for transport service and for meal coupons, they have recovered any part of cost of these services from their employees. He also submits that at the stage of claiming credit there was no objection raised by the Revenue and hence such objection cannot be raised at the stage of adjudicating refund under Rule 5 of Cenvat Rules. 4. The Learned Authorised Representative for the Revenue, Shri N N Prabhudesai submits that when Notification No. 5/2006 (supra) specifically provides for time limitation under Section 11B of the Central Excise Act, refund filed beyond the period of one year from the date of invoice is rightly r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Elcomponics Sales Pvt. Ltd. vs. CCE, Noida and Global Energy Food Industries vs. CCE, Ahmedabad (supra), I hold that no time limit will apply for refund claim under Rule 5 of the Cenvat Credit Rules. Further, prior to date of crystallization of right to refund, no limitation can start running. 5.2 With respect to denial of refund claim on embroidery software service, I find that it is evident from the agreement produced before me that the said activity is in the nature of service. Further, actual export of underlying service and receipt of foreign exchange is not in dispute. Also for the past period the assessee has been carrying out the same activity and was accepted by the Department as service. In view of the above, merely because the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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