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TMI Blog2016 (1) TMI 1133X X X X Extracts X X X X X X X X Extracts X X X X ..... set aside the rejection of Rs. 16,23,447/-. Ld. Commissioner also allowed the interest on the refund amount of Rs. 16,23,447/-. 2. The fact of the case is that assessee is registered with the Service tax department and engaged in providing various taxable services viz. management consultant service, maintenance or repair service, business service, banking and financial service, commercial coaching and training service, renting of immovable property service etc. The assessee filed four refund claims totally amounting to Rs. 2,12,45,060/- under Rule 5 of Cenvat Credit Rules, 2004 in respect of unutilized input service credit availed during the period April, 2007 to March, 2008. The said four refund claims were rejected by the Asstt. Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Asstt, Commissioner though disallowed the Cenvat credit and rejected refund claim on the ground that certain input services are not admissible for Cenvat credit and there is no nexus of such input services with the export of services, the issue of admissibility of input services was not subject matter of the show cause notice therefore in the adjudication order disallowing the Cenvat credit and consequentially rejection of refund claim is beyond the scope of Show Cause Notice. Aggrieved by the said impugned order dated 20/1/2015, assessees as well as Revenue both have filed these appeals. 3. Shri. R.J. Naik, Ld. Counsel for the assessee submits that as regard rejection of refund claim of Rs. 81,80,550/- on time bar, the refund is u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foreign exchange. He submits that as per the date of receipt shown in the statement, the refund claim was filed within one year from the date of foreign remittance to the assessee. For this reason, even if limitation of Section 11B is applied, refund is well within limitation, therefore refund was wrongly rejected. He placed reliance on following judgments:- (a) Bechtel India Pvt. Ltd. Versus Commissioner of Central Excise, delhi [2014 (34) S.T.R. 437 (Tri. - Del.)] (b) Alar Infrastructures Pvt. Ltd. Versus Commissioner of C. Ex., Delhi-I[2015 (38) S.T.R. 1087 (Tri, - Del.) (c) CC, CE & ST Vs. Hundai Motors India Pvt Ltd[2015 (39) STR 984 (AP)] As regard Revenue's appeal in relation to disallowance of Cenvat credit of Rs. 17,55,166/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected refund claim. 5. We have carefully considered the submissions made by both sides. 6. We find that as per the statement submitted by the Ld. Counsel it appears that the refund claim has been filed within one year from the date of realization of foreign remittance towards export of services. If it is correct then refund cannot be held as time bar. As per the various judgments cited by the Ld. Counsel it is settled that in case of refund towards export 'relevant date' shall be the date on which foreign remittance has been received and the period of one year for filing refund claim shall be reckoned from date of receipt of foreign exchange. However this aspect has not been verified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that the issue of eligibility of credit, although raised in the original show cause notice, was never pursued by the department in the adjudication order or first appellate order. Since the department has not questioned the first adjudication order, the Adjudicating Authority has erred in deciding the said issue in his impugned order and that too on altogether different grounds. I find that the ground on which the adjudicating authority has disallowed the cenvat credit i.e. the co-relation of use of input service for providing output service was not taken up in the show cause notice dated 29-9-2008. This issue was also not discussed in the earlier Order-in-Original dated 23-2-2009. Therefore, the issue which was not the subject mat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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