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TMI Blog2016 (3) TMI 1049X X X X Extracts X X X X X X X X Extracts X X X X ..... section 11B to the entire issue, the question of application of section 11B would not arise, as in the case, the refund of amount of Cenvat Credit availed on various input services is clearly covered by rule 5 of CCR, which lays down the time limit for filing of the refund claim i.e. within one year from the end of quarter during which services were exported. Therefore, the finding recorded by the first appellate authority on this point is correct and does not require any in curtains. - Decided against the revenue - APPEAL No. ST/85128/15-MUM, ST/CO/91061/15-Mum - Final Order Nos. A/85103-85104/2016-WZB/SMB - Dated:- 1-1-2016 - M. V. Ravindran, Member (J) Foe the Appellant : Shri A.B. Kulgod, Assistant Commissioner (AR) For t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate authority in respect of receipt of payment is wrong and is not covered under provisions Section 11B of Central Excise Act, 1944. It is also his submission that filing of the refund claim under rule 5 also to needs to read with limitation as prescribed under provisions of section 11B of the Central Excise Act, 1944; would mean that in this case assessee has filed two refund claim beyond one year and the findings that there is curtailment of period as has been recorded by the first appellate authority is erroneous. It is his further submission that the claim in this appeal having been filed beyond time limit under section 11B of the Central Excise Act 1944, refund claim is correctly denied. 4. Learned consultant appearing on behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich remains unutilized. 6. The first appellate authority in the impugned order has held that the claim of refund of the respondent assessee needs to allowed. I find that the first appellate authority has considered the entire issue in its correct perspective while allowing the appeal filed before him. I reproduce the relevant findings. 14. As per the definition of Export turnover of services', as contained in clause (D) of new Rule 5(1) of the CCR, for calculating export turnover of services, only following components are to be included in Export turnover of services . (a) the payments received during the relevant quarter for the services exported during the relevant quarter; (b) the payments received during the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exported during the given period. Similarly, advance payments received before 01-04-2012 but services exported after 01-04-2012 shall be considered while filing a claim governed by the substituted (new) Rule 5 of the CCR. In case of advance payments received before 01-04-2012 but services exported after 01-04-2012, the said services are specifically included in the Export Turnover of services, as explained above, as per the new Rule 5. Further, the said services/payments were not to be considered for Export Turnover under the erstwhile Notification 05/2006-CE (N.T.) and the erstwhile Rule 5 of the CCR. Thus, I find that there is synergy between the provisions of earlier Notification 05/2006-CE (N.T.) and the new Notification No. 272012-CE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11027100 Part receipt for May, 12 As explained in para 14 above, the said payments totaling ₹ 4,86,32,973/- are required to be included in the Export Turnover of services' as per clause (D) of Rule 5(1) of the CCR. Thus, I find that the Export Turnover of services' is ₹ 4,86,32,973/- (Rs. NIL + ₹ 4,86,32,973/-). The Appellant have calculated the Export Turnover of services' at ₹ 9,57,65,100/- which is found incorrect. 16. I also find that the Appellant have also included the following invoices for calculating Export Turnover of services' as below: Against services exported before 01-04-2012, but payments received during July to September 2012: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of services + ₹ 4,86,32,973/- Total Turnover = ₹ 4,86,32,973/- Net CENVAT Credit = ₹ 45,12,121/- (48,18,805/- Minus 3,06,684/-) Refund amount = Export turnover of services X Net Cenvat credit Total turnover Refund = 48632973 X 4512121/- = 4512121/- amount 48632973/- Since refund of ₹ 15,33,083/- has already been granted vide the impugned Order-in-Original, the appellant are found entitled to further refund of ₹ 29,79,038/- (Rs.45,12,121/- minus ₹ 15,33,083/- = ₹ 29,79,038/-). It can be seen from the above reproduced findings that first appellate authority has correctly followed the law which grants the refund of unutilized Cenvat Credit that has been taken in respect of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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