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TMI Blog2023 (4) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... ection because this was meant for refund of duty of excise and not for export of services. Since the Notification No. 27/2012 CE (NT) dated 18.06.2012 required the claim to be made before the expiry of a period specified under Section 11 B and this Section does not specify what is the relevant date in case of export of services, the Tribunal has, in a series of decisions, held that relevant date in case of export of services is the date of realization of the foreign exchange. The reason for this is the export of services is not complete unless the foreign exchange is realized as per Rule 3 (2) (b) of export of services Rules, 2005. Therefore, unless the foreign exchange is realized, the export is not complete and therefore the relevant date must be the date of realization of foreign exchange. In the present case, the exports were made and refund claims filed before the issuance of the above notification. The lower adjudicating authority reckoning the date of export invoice as the relevant date, rejected these refund claims as time barred - there is no ground that Section 11 B mandates that the date of invoice must be considered as the relevant date. The residual category under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had filed for Refund of unutilized Cenvat Credit for eight quarters spanning from July 2012 to September 2014 under Rule 5 of the Cenvat Credit Rules, 2004 read with Notification No. 27/2012-CE dated 18.06.2012. The details of eight refund claims and the period involved are summarized below:- No. Appeal No. Period Involved Amount claimed (Rs.) Refund Involved (Rs.) 1 ST/41386/2017 Jan 14 to Mar 14 61,84,262 61,75,803 2 ST/41387/2017 Oct 12 to Dec 12 63,93,720 63,93,533 3 ST/41388/2017 Jul 14 to Sep 14 61,87,085 61,87,085 4 ST/41389/2017 Jul 14 to Sep 13 71,12,869 71,12,869 5 ST/41390/2017 Jul 12 to Sep 12 51,20,074 51,20,074 6 ST/41391/2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Ltd. 2022 (6) TMI 615-Cestat, Chennai 2) Sundaram Business Services Ltd. 2019 (9) TMI 582-Cestat, Chennai 3) GE Drilling Engineering Services of India Pvt. Ltd. 2019 (8) TMI 1025-Cestat, Chennai 4) Blackberry India Pvt. Ltd. 2021 (45) GSTL 272- (Tri.-Del.) 3.2 It has been also submitted that some minor portion of Cenvat Credit was rejected on the ground that the appellant has failed to take registration of their premises. In this regard, it was informed that the appellants have registered with the service tax department from December 2008 onwards and the denial of refund claims was not on the ground that the appellant is not registered but it was only on the ground that three invoices issued by M/s. Dimension Data did not contain their Service Tax Registration Number. Though the service tax registration number of the supplier was available, non-mentioning of such registration number has been mentioned as a ground for rejection of refund. Regarding missing supplier invoices, the appellants have furnished the same before the lower appellate authority but he failed to consider the same and have not recorded any findings. The learned Advocate submitted that the el ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The original authority rejected their refund claims on the ground that these were filed beyond the period of limitation specified in Section 11B of the CEA, 1944, considering the dates of export invoices. 6.2 On study of various decisions of the Judicial Authorities including the Co-ordinate Benches of the Tribunal, we find that Section 11B of the CEA, 1944 has been drafted to prescribe a procedure for claiming of refund of central excise duty under various circumstances within one year from the relevant date. The relevant date has been defined in the explanation to this Section for various purposes. As far as the export of services is concerned, no relevant date was prescribed in this Section because this was meant for refund of duty of excise and not for export of services. Since the Notification No. 27/2012 CE (NT) dated 18.06.2012 required the claim to be made before the expiry of a period specified under Section 11 B and this Section does not specify what is the relevant date in case of export of services, the Tribunal has, in a series of decisions, held that relevant date in case of export of services is the date of realization of the foreign exchange. The reason for this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of export of services as in these appeals there is no payment of duty at all. As such, the Tribunal has considered as to what constitutes an export of service under the Export of Service Rules and concluded that the date of realization of foreign exchange is the relevant date. If the export is not complete, the exporter of services is not entitled to claim refund under Rule 5 of CCR, 2004. Therefore, harmoniously reading the Export of Service Rules and Section 11 B of CEA, 1944, the Tribunal has held a view that in case of export of services, the relevant date must be the date of realization of foreign exchange. For this reason only, an Amending Notification No. 14/2016-CE (NT) dated 01.03.2016 was issued to remove the lacuna in the initial Notification No.27/2012-CE (NT) dated 18.06.2012. 6.5 We find that the issue of limitation/Time bar in the impugned order stands settled in favour of the appellants in view of the Larger Bench decision in the case of Span Infotech Pvt. Ltd. ,- 2018 (12) G.S.T.L. 200 (Tri.-LB) wherein the Tribunal has held as follows:- 10. After considering the provisions of the notifications issued under Rule 5 of the CCR, we note that there is a sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Further, we find that while scrutiny of the refund claims filed by the appellants, the lower adjudicating authority rejected a portion of the refund claims for the reason that they are not eligible for availment of Cenvat credit under Cenvat Credit Rules, 2004, on account of missing invoices, excess credit wrongly taken, Not being related to output service, non-mentioning of service provider s registration number on the input/input service invoices etc. Learned Advocate for the appellants has submitted that these invoices are actually available but due to omission missed out to be attached at the time of filing refund claims and they had submitted all the copies of those invoices before the lower adjudicating authority. But the lower adjudicating authority have not taken t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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