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TMI Blog2018 (2) TMI 946X X X X Extracts X X X X X X X X Extracts X X X X ..... y with receipt of the consideration in foreign exchange. Consequently, the date of Foreign Inward Remittance Certificate (FIRC) is definitely relevant. In respect of export of services, the relevant date for purposes of deciding the time limit for consideration of refund claims under Rule 5 of the CCR may be taken as the end of the quarter in which the FIRC is received, in cases where the refund claims are filed on a quarterly basis. The matter reverted to the regular Benches for deciding the respective appeals. - ST/20705/2016 - Interim Order No. 4 / 2018 - Dated:- 9-2-2018 - Hon ble Justice (Dr.) Satish Chandra, President, Hon'ble Shri S. S Garg, Judicial Member And Hon'ble Shri V. Padmanabhan, Technical Member Sh V. Raghuraman, Shri Chidanand Urs, Shri M.S. Nagaraja, Shri S. Ananthan, Ms. R. Lalitha, Shri S. Sivakumar, Shri N. Anand, Shri Rajesh Kumar, TR, Shri Rajesh Kumar, Shri A.K.J. Nayak, Shri Sandeep Hujlgol, Shri Deepak Jain, Shri Teja, Shri Shekar, Shri S. Annamalai, Shri K.S. Naveen Kumar, Shri Sreekanth For the Assessees Dr. J. Harish, Dy. Commissioner(AR) Shri N. Jagadish, Superintendent(AR) For the Revenue ORDER Per : V. Padmanabha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and seek his advice for placing all these matters before Larger Bench to settle the question of law. 2. On the issue, various members of the Bar were heard as well as the learned ARs on behalf of the Revenue. 3. The submissions made by the lead counsel Shri V. Raghuraman, advocate is summarized below:- i. Rule 5 of the CENVAT Credit Rules, 2004 (CCR) provides for refund of accumulated CENVAT credit if the same cannot be adjusted towards payment of duty of excise or service tax. The refund is to be allowed subject to the safeguards, conditions and limitations as specified by the Central Government. For this purpose, the Government initially issued Notification No.5/2006-CE(NT) dt. 14/03/2006 specifying the relevant conditions. Rule 5 of the CCR was amended w.e.f. 01/04/2012. The Notification No.5/2006 was also superseded by issue of Notification No.27/2012-CE(NT) dt. 18/06/2012. The Notification No.5/2006 as well as the succeeding Notification No.27/2012 provides for the refund claims to be filed on a quarterly basis. However, Export Oriented Units (EOUs) were given the option to file such claims once every calendar month. ii. The issue under consideration before this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pretation should be extended to the assesses as held by the Division Bench of the Tribunal in the case of CST, Mumbai-II Vs. Sitel India Ltd. [2016-TIOL-818-CESTAT-MUM] where the Bench held that refund claims can be filed within one year from the end of the quarter irrespective of the date of receipt of FIRCs in that quarter. 4. Shri Chidanand Urs, learned counsel contested the jurisdiction of the Single Member to make a reference for constitution of Larger Bench. It is his submission that in view of the decision of the Division Bench of the Tribunal in favour of the assesses, the Single Member is required to follow the same as per judicial propriety. 5. Shri M.S. Nagaraja, learned advocate while adopting the argument of Shri Raghuraman, relied on the decision of the Hon ble Karnataka High Court in the case of mPortal India Ltd. [2012(27) STR 134 (Kar.)]. and submitted that provisions of Section 11B of the Act itself will be inapplicable for refund under Rule 5 of CCR. 6. Shri S. Ananthan, learned Chartered Accountant submitted that the provisions of Section 11B must be read and interpreted strictly. This Section applies only to a refund of excise duty or output service ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns periodically where all such details are furnished. v. He summed up with the submission that the date of receipt of foreign exchange must be considered as the relevant date. In the view of Revenue, there is no justification to extend such date till the end of the quarter. 8. We have heard all connected parties in great length and perused the connected records. In the interest of bringing clarity to the issue on hand, we ignore the objection raised on jurisdiction and proceed to decide the issue on merit. 9. Rule 5 of the CENVAT Credit Rules, 2004 provides for refund of unutilized CENVAT credit, even after adjustment of the same for payment of duty of excise or service tax. The conditions, safeguards and limitations for consideration of such refund claims have been spelt out by the Government through notifications. Notification No.5/2006 (up to 17/06/2012) and Notification No.27/2012 (w.e.f. 18/06/2012) (as amended) has specified the conditions in this regard. These notifications specify that such refund claims are to be filed within the period specified in Section 11B. The relevant date specified under the above section leavs no room for doubt as far as export of goods i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FIRC is received since the refund claim is filed for the quarter. 13. Revenue has expressed the view that relevant date in the case of export of services may be adopted on the same lines as the amendment carried out in the Notification No.27/2012, w.e.f. 01/03/2016. Essentially after this amendment the relevant date is to be considered as the date of receipt of foreign exchange. While this proposition appears attractive, we are also persuaded to keep in view the observations of the Hon ble Supreme Court in the case of Vatika Township (supra), in which the Constitutional Bench has laid down the guideline that any beneficial amendment to the statute may be given benefit retrospectively but any provision imposing burden or liability on the public can be viewed only prospectively. Keeping in view the observations of the Apex Court, we conclude that in respect of export of services, the relevant date for purposes of deciding the time limit for consideration of refund claims under Rule 5 of the CCR may be taken as the end of the quarter in which the FIRC is received, in cases where the refund claims are filed on a quarterly basis. 14. With the above observations, we revert the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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