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TMI Blog2016 (10) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... g reliance on the ruling of mPortal Wireless Solutions Private Limited Vs CST, Bangalore []2011 (9) TMI 450 - KARNATAKA HIGH COURT]. Therefore, the refund of CENVAT Credit on renting of immovable property is allowed, by following the ruling of Karnataka High Court. Refund claim - denial of refund claim on the ground of imitation of time - Held that:- Commissioner (Appeals) dealt the limitation issue in depth and passed a detailed order and held that inasmuch as the refund is related to Cenvat credit taken during the given period and the same shall be taken till the last day of the given period, namely the quarter, the claim for refund can only be filed after the last date of the respective quarter and the relevant date is the date of export ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On appeal, the Commissioner (Appeals) set aside the OIO to the extent of (i) rejecting part of the refund claim on the ground of Non-registration of premises (ii) rejecting part of the refund claim on the ground of limitation of time. Revenue is aggrieved by this order and on appeal before this Tribunal. 3. Ld. A.R, Shri P.Anbuchelvan, Superintendent reiterated the findings of the adjudicating authority and the Commissioner (Appeals) and submitted that the adjudicating authority has rightly denied the input service credit of ₹ 3,70,467/- on the ground of ineligible input services and limitation. However, the Commissioner (Appeals) set aside the impugned order to the extent of rejection of refund claim as time barred and also held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l in the case of CST, Goa Vs. Ratio Pharma India Pvt. Ltd. - 2015 (39) STR 31 (Tri.- LB)., wherein it has been held that relevant date for determining the limitation period is the date of receipt of foreign exchange. Hence, he prayed that the department's view is not correct and the matter can be remanded to the LAA for verification of date of receipt of payment of foreign exchange to ascertain whether it is well within the period of limitation. He further submitted that this plea was also taken before the authorities below. He also argued in respect of the service of Renting of Immovable Property denied on the ground of non-registration of premises; that there is no specific condition either in Rule 5 of the CCR, 2004 or in the Notfn No.27 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a High Court in the case of mPortal India Wireless Solutions Pvt. Ltd. Vs ST - 2012 (27) STR 134. The Honble High Court at para-7 of its order has held as follows :- "7. Insofar as requirement of registration with the department as a condition precedent for claiming Cenvat credit is concerned, learned counsel appearing for both parties were unable to point out any provision in the Cenvat Credit Rules which impose such restriction. In the absence of a statutory provision which prescribes that registration is mandatory and that if such a registration is not made the assessee is not entitled to the benefit of refund, the three authorities committed a serious error in rejecting the claim for refund on the ground which is not existence i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the relevant date is the date of export and are entitled in terms of Notification No. 27/2012 dated 18.06.2012 read with Section 11 B of CEA, 1944, and the refund claim is not hit by limitation. The case laws relied upon by the respondent assessee are in their favour and they are squarely applicable to the present case. As per Rule 5 of CCR, 2004, in case of export of services, export is complete only when foreign exchange is received in India. This aspect has not been brought out by both the authorities below. Hence, the matter is remanded to the adjudicating authority with the direction to verify the date of receipt of foreign exchange received in India to determine the relevant date of export to decide the limitation aspect. 7. I also f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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