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TMI Blog2016 (2) TMI 849X X X X Extracts X X X X X X X X Extracts X X X X ..... kept open. We find no merits in the appellant's contention on the point of limitation. Accordingly, we uphold a part of the impugned order vide which he has held that a part of the demand is barred by limitation. Inasmuch as the appeal stands remanded to the original adjudicating authority for the purpose of examination of nexus, he would decide the quantum of refund falling for the period within the limitation, based upon the date of consideration received by the appellant - Decided partly in favor of assessee. - ST/2207/2010-DB, ST/2209/2010-DB - Final Order Nos. 20211 & 20212 / 2016 - Dated:- 5-2-2016 - SMT. ARCHANA WADHWA, JUDICIAL MEMBER AND SHRI ASHOK K. ARYA, TECHNICAL MEMBER For the Petitioner : Mr. N. Anand, Advocate For the Respondent : Mr. Ajay Saxena, Commissioner (A.R.) ORDER PER ARCHANA WADHWA After hearing both sides for some time, we find that the appellant-assessee is engaged in export of services, some of which taxable and some non-taxable. He was also availing the benefit of Cenvat credit of service tax paid on various input services. The said credit so availed by him is being utilized for payment of tax on taxable export service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmits that though the Notification No. 5/2006-C.E. (N.T.) issued under Rule 5, refers to the provisions of Section 11B of the Central Excise Act, 1944, but inasmuch as under Section 11B of the Central Excise Act there is no relevant date defined or prescribed for refund claim of the unutilized credit, no time limit would apply and in the absence of any relevant date defined, it should be left to the assessee to decide as to from which point of time, they were not in a position to utilize the credit and claim refund thereafter. 5. As regards the above arguments of the learned advocate, learned Commissioner (A.R.), by reading of the notification as also the provisions of Rule 5 submits that for claiming such refund, the matter cannot be left to the discretion of the assessee to decide as to which point onwards, they would not be in a position to utilize the credit. He draws our attention to the Hon ble Madras High Court s decision in the case of Commissioner of C. Ex., Coimbatore Vs. GTN Engineering (I) Ltd. [2012 (28) S.T.R. 426 (Mad.) as also the decision of the Division Bench of the Tribunal in the case of Hyundai Motor India Engg. (P) Ltd. Vs. C.C.E., C. S.T., Hyderabad-I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s relied upon by the learned advocate are Single Member decisions which stand rendered, without taking note of the decision of the Hon ble High Court of Madras in the case of GTN Engineering (I) Ltd. The Honble Madras High Court s judgement in GTN Engineering (I) Ltd. case dealt with the identical issue and held as under : 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 in Form-A along with prescribed enclosures and also the relevant extracts of the records maintained under the Central Excise Rules, 2002, Cenvat Credit Rules, 2004 or Service Tax Rules, 1994 in original. That application should be filed before the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be. For the purpose of finding out as to the relevant date for the purpose of making claim for refund of CENVAT credit, Rule 5 should be made applicable. It is the contention of the learned counsel for the assessee that the provision defining relevant date does not cover the claim for refund of CENVAT credit. We may point out that when a statute empowered for su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tri.-Mumbai)] to support his submission that relevant date for filing the refund claim in case of export of services is the date of payment for services exported and not the date when services were provided. No contrary decision has been produced before us by the learned AR. We also find that in the case of goods exported, the relevant date would be the date of export of goods but the same analogy may not be applicable in respect of relevant date for the purpose of refund. The liability to pay tax or duty arises in the case of manufactured goods as soon as they are manufactured whereas in the case of service tax till the law was amended, only when the consideration was received, the liability to pay tax arose. Without clearance of goods, the liability to pay tax does not arise and in the absence of liability to pay tax, further proceedings also would not happen. That being the situation, invariably even if the taxable event is manufacture, the calculation of tax took place after removal and for the purpose of calculation of duty liability it is always the date of removal that is considered. That being the position, it would be appropriate that the relevant date for calculating the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imitation, it cannot be said that Section 11B cannot be applied. It was argued that by incorporating the provisions for application of Section 11B of the Act for the purpose of limitation in the notification, the executive has exceeded the power given to them for issue of notification. It was argued that Section 11B of the Act cannot be quoted in the notification for the purpose of limitation at all. Therefore, provision relating to limitation cannot be applied. The answer is that if a provision or a clause in the notification is in excess of powers granted for issue of notification or amending a rule or for any other purpose, the remedy is under Article 226 of the Constitution or Article 32 of the Constitution and therefore, the Tribunal can only see whether notification or rule or act and whether those provisions have been followed or not and cannot go into correctness or virus of a provision of a rule or notification. Therefore, we have to apply the notification and only if there is ambiguity, we may have to resort to interpretation but not when the notification is clear. There is no dispute on meaning of words used in this clause and it would be inappropriate to take the view a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 11B applicable for the purpose of service tax matters also. When Section 11B is applicable to service tax matters, we have to replace words 'excisable goods' used under Section 118 as 'services'. Therefore, for the purpose of refund, in view of the specific provisions of Section 83 and notification under Rule 5, it is necessary to substitute service in place of goods. We are not able to agree with the submission that this cannot be done. Therefore, provisions of Section 11B for the purpose of limitation would be applicable. Moreover, it is settled law that while interpreting notification or statute, it is necessary to interpret in such a manner that the relevant clause or the provision does not become OTIOSE. If the submission made be learned counsel on behalf of the appellants that Section 11B would not be applicable at all, we would be rendering the clause relating to Section 11B in the notification totally irrelevant for the purpose of refund. In view of this reason, this submission cannot be accepted. 6.16. Issue No.16: Method for calculation of relevant date. Next question arises is how to apply Section 11B for calculating limitation. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the relevant provisions (Rule 57F) and the relevant clause 6 of Appendix to Notification issued under Rule 57F was not discussed and considered in detail. The Hon'ble High Court took note of the fact that the claim was under clause 6 of appendix to notification and thereafter, the observations made by the High Court in Para 7 which are reproduced below: 7. In our opinion, merely because the refund application was not filed strictly within 6 months before expiry of period specified in Clause 6 of Appendix read with Section 11B ibid but was filed late by 27 days could not have been made the sole ground for the rejection of application as barred by limitation. In fact, the claim in question did not fall strictly within the four comers of Section 11B but it essentially fell within the four corners of Clause 6 of Appendix to notification issued under Rule 57F. In the decision rendered in the case of GTN Engineering (i) Ltd. [2012 (28) S.T.R. 426 (Mad)] = 2012-TIOL-369-HC-MAD-CX, Hon'ble Madras High Court considered this issue in great detail and provisions were cited and considered. Being a judgment which was delivered later and considered all the relevant statutory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maintained under the Central Excise Rules, 2002, Cenvat Credit Rules. 2004 or Service Tax Rules, 1994 in original. That application should be filed before the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be. For the purpose of finding out as to the relevant date for the purpose of making claim for refund of CENVAT credit. Rule 5 should be made Applicable It is the contention of the learned counsel for the assessee that the provision defining relevant date does not cover the claim for refund of CENVAT credit. We may point out that when a statute empowered for such claim, the said provision must be read to find out as to the relevant date. Rule 5 specifies that where any input or input service is used in the manufactures of final produce which is cleared for export under bond or later of undertaking as the case may be, or used in the intermediate product cleared for export or used in providing output service which is exported, the CENVAT credit in respect of the input or input service so used shall be allowed. 15. A reading of the above rule, though there is no specific relevant date is prescribed in the notification, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . GTN Engineering (I) Ltd [2012 (28) S.T.R. 426 (Mad.)] = 2012-TIOL-369-HC-MAD-CX, this Tribunal had taken a view that for the purpose of calculating limitation in respect of claim for refund of tax paid on input service, the relevant date should be the date on which the consideration has been received where the claimant is service provider and consideration paid where the claimant is service receiver. This decision was rendered in the case ofHyundai Motor India Engineering (P) Ltd. vs. C.C.E. Hyderabad = 2014-TIOL-1034-CESTAT-BANG. Therefore in our opinion, this decision can be followed. As observed above, the law on limitation stands finally settled by above referred decisions. At this stage, learned A.R. submits that the relevant date was held to be the date on which the consideration was received by the service provider. However with effect from 1.4.2011, the law has been changed for the purpose of payment of service tax and it has been held to be the date on which date invoice was raised. Accordingly, the relevant date which has been held as receipt of consideration received, in the decision in the case of Hyndai Motor India Engg (P) Ltd. should be shifted as date of raisin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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