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TMI Blog2017 (4) TMI 1132X X X X Extracts X X X X X X X X Extracts X X X X ..... of the cenvat credits availed by the appellants were held to be ineligible on the grounds that the said services were not directly used for providing the output service. All these findings and decisions of the original authority, in each case, have been upheld by the lower appellate authority. 4. The details of period, refunds claimed and rejected etc. as recorded in the impugned order are tabulated as under :- S. No. OIO No./Date Period involved Refund claimed (Rs.) Refund rejected. (Rs.) 1. 24/2014 (R) dt. 7.5.2014 July 2012 to Sept'2012 8,66,264 2,06,484 2. 31/2015 (R)dt. 13.5.2015 July 2013 to Sept'13 2,04,138 46,215 3. 32/2015 (R) dt. 18.5.2015 Oct'13 to Dec'13 1,70,010/- 20,947 4. 88/2015 (R) dt. 31.7.2015 Jan'14 to March'14 1,17,556 10,222/- 5. Being aggrieved by the partial rejection of the refund claims as above, appellant has filed the present appeals. 6. Summary of the contentious issues and amounts involved in these appeals are summarized in the following chart submitted by the appellant : Appeal No. & Period Refund details Ineligible CENVAT credit as per the Department Declared export turnover in the refund applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and hence the ratio thereof would not be applicable to the present appeals. He also submits that in some cases, credits availed by them on input services have been held as ineligible credits, however these credits are very much permissible to be availed as per the provisions of the Cenvat Credit Rules, 2004. 8. On the other hand, on behalf of Revenue Shri B.Balamurugan (AC), Ld. A.R inter alia supports the adjudication and also submitted written submissions, which can be summarized as under : i. The appeal is not sustainable for the reasons that the learned first appellate authority clearly held in paras 5 to 8 of the impugned Order in Appeal in page Nos. 3 to 5 in Paper Book page Nos.11 to 13 annexed with appeal No.S/40568/2016 the available precedents in this regard to arrive his decision. ii. As per Rule 9(5) of the CENVAT Credit Rules, 2004, the burden of proof regarding admissibility of the CENAT Credit is casted upon the appellant. However, the appellant has not discharged their onus of admissibility of CENVAT credit taken on the impugned input services enumerating with the definition of Rule 2(l), ibid, inasmuch as, the definition of Rule 2(l) clearly contains exhaust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate authority in the impugned order. 9.3 The reasons for the said rejection emerges in para-7.3 of the order of the original authority on page 22 of the appeal papers which is reproduced as under : "7.3 In the instant case, from the declaration and documents furnished, I find that although the claimants have realisedtotalling amount of Rs. 1,94,02,792/- during the relevant period, from the FIRC's furnished I notice that they have received payment amounting of Rs. 1,50,25,160/- relating to the export invoices raised between 25.06.2012 and 31.08.2012. I find that the claimants have not received any advances for export service for which the provision of service have not been completed during the relevant period. Similarly I also find that the claimants have not received any payment prior to the relevant period for which the services have been completed during this period. Accordingly, I proceed to determine the export turnover taking into account the relevant date in terms of Sec 11B of the Central Excise Act. While venturing to do so, I find that the export invoices related to the FIRCs received during the relevant quarter raised before 21.06.2012 are beyond the period of o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvices by the manufacturer or the output service provider reduced by the amount reversed in terms of sub-rule (5C) of rule 3, during the relevant period; (C) "Export turnover of goods" means the value of final products and intermediate products cleared during the relevant period and exported without payment of Central Excise duty under bond or letter of undertaking; (D) "Export turnover of services" means the value of the export service calculated in the following manner, namely :- Export turnover of services = payments received during the relevant period for export services + export services whose provision has been completed for which payment had been received in advance in any period prior to the relevant period - advances received for export services for which the provision of service has not been completed during the relevant period; (E) "Total turnover" means sum total of the value of - (a) all excisable goods cleared during the relevant period including exempted goods, dutiable goods and excisable goods exported; (b) export turnover of services determined in terms of clause (D) of sub-rule (1) above and the value of all other services, during the relevant period; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an earlier quarter. 9.8 Thus, relevant quarter/period for which refund has been claimed under Rule 5 ibid can very well also relate to export of services effected earlier. From a combined reading of the various portions of the definition of 'export services' in Rule 5 (D), in my view, the only requirement is that both receipt of payment and provision of export services should have been completed by, or within the quarter for which the refund claims under Rule 5 ibid are being made. That is, if payments had been received earlier and actual export effected only in the relevant period, claim of corresponding credit refund can only be made during the relevant period. So also, if any export of services has been effected earlier but inward remittances/FIRCs have been received only during the relevant quarter for which claim is made, refund of credit amount corresponding to the payments received can only be made during the relevant quarter. In this way, the Government is ensuring that not only services are exported but also payments thereof are received at the point when the refund claim under Rule 5 ibid is made. 9.9 No doubt, the provisions of Section 11B have been made applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onvertible currency as per the FIRC during the particular quarter or as per the date of invoice. (b) Whether the Cenvat credit is admissible in respect of event management service, insurance auxiliary service, rent-a-cab service, for providing exports services (c) In relation to refund under Rule 5 whether limitation of one year should be reckoned from the date of FIRC or from the end of particular quarter. Regarding the export turnover relevant provisions of Rule 5 is reproduced below : Rule 5. Refund of CENVAT Credit. - (1) A manufacturer who clears a final product or an intermediate product for export without payment of duty under bond or letter of undertaking, or a service provider who provides an output service which is exported without payment of service tax, shall be allowed refund of CENVAT credit as determined by the following formula subject to procedure, safeguards, conditions and limitations, as may be specified by the Board by notification in the Official Gazette : Refund amount = (Export turnover of goods + Export turnover of services) Total turnover x Net CENVAT credit Where, - (A) ------ (B) ------- (C) ------ (D) "Export turnover of service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven though related to invoices issued or export services provided for the period prior to that quarter, will definitely required to be included in the export turnover of services for that quarter. Appeal in respect of this dispute is therefore allowed in all the three appeals. (ST/40568/2016, ST/40569/2016 and ST/40570/2016). For appeal No.ST/40571/2016, where an amount of Rs. 1,87,140/- of export turnover has been rejected since received by NEFT transfer, the appeal is allowed for the same reasons and also since there is no allegation that the inward remittance has been received through illicit channels or are not legitimate proceeds of services exported. 9.14 Appeals on the above dispute involving rejection of part of export turnover on the grounds that though the FIRCs were received in the relevant quarter, the related export invoices were issued beyond period of limitation are therefore allowed. 10. In respect of the disputed input services, as already discussed hereinabove in paras 8.2 and 8.3, except for credit relating to housekeeping services, no interference is made with regard to the denial of other input service credits. However the matter is remanded back to the origi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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