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TMI Blog2023 (6) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... ses. 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-C.E.(N.T.) dated 18.06.2012 required the claim to be made before the expiry of a period specified under Section 11B 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 were 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 11B mand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s down that the assessee is free to take back the credit of not sanctioned / partially sanctioned refunds. As such, payment of interest in the circumstances of these appeals is not provided for. The impugned order set aside - appeal allowed. - Service Tax Appeal Nos. 40918 and 40919 of 2016 WITH Service Tax Misc.[CT] Application Nos. 40075 and 40076 of 2023 and Service Tax Appeal Nos. 41101 to 41106 of 2017 WITH Service Tax Misc.[CT] Application Nos. 40069 to 40074 of 2023 - FINAL ORDER NOs. 40376-40383 / 2023 - Dated:- 30-5-2023 - MR. P. DINESHA, MEMBER (JUDICIAL) AND MR. VASA SESHAGIRI RAO, MEMBER (TECHNICAL) Ms. Shrayashree T., Advocate for the Appellant Smt. Sridevi Taritla, Additional Commissioner for the Respondent ORDER There is a change in the appellant s name from Ad2pro Media Solutions Private Limited to Ad2pro Global Creative Solutions Private Limited and miscellaneous petitions have been filed by the appellant to this effect requesting for change in the cause-title. The above request is acceded to and the petitions for amending the cause-title are allowed, as prayed for. 1. M/s. Ad2pro Global Creative Solutions Private Limited [Formerly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2016 April 2012 to June 2012 27th Mar 2013 40,28,643/- 20/2014 dt. 22.04.2014 20,80,534/- 19,48,109/- No ST/ 40919/ 2016 July 2012 to Sep 2012 27th June 2013 31,40,284/- 23/2014 dt. 30.04.2014 16,91,195/- 14,49,089/- No Appeal to Commissioner (Appeals) Appellant Before Commr. (Appeals) Amount appealed (in Rs.) OIA No. dt. OIA outcome Refund rejected as per OIA (in Rs.) Ad2pro 19,48,109/- 124 125/2016 dt. 22.02.2016 Rejection upheld by Commr. (Appeals) 19,48,109/- Ad2pro 14,49,089/- Rejecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01.07.2016 37,40,940/- 50,171/- Yes 50,171/- ST/ 41102/ 2017 April 2014 to June 2014 07th January 2015 69,88,441/- 51/2016 dt. 01.07.2016 69,86,958/- 1,483/- Yes 1,483/- ST/ 41103/ 2017 July 2014 to Sep 2014 07th January 2015 49,92,901/- 52/2016 dt. 01.07.2016 48,77,397/- 115,504/- Yes 115,504/- ST/ 41104/ 2017 Jan 2015 to Mar 2015 27th May 2015 44,17,193/- 54/2016 dt. 01.07.2016 44,17,193/- - Yes - ST/ 41105/ 2017 April 2015 to June 2015 25th Februa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xport of Service Rules and the provisions of Section 11B of the Central Excise Act, 1944, the relevant date from which one year time period for filing a refund claim of CENVAT Credit in case of export of services shall be calculated is the date of receipt of consideration i.e., the date of Foreign Inward Remittance Certificate (FIRC), as the export of service is said to be complete only on the date when the consideration is received in foreign exchange. It is further submitted that as the refund claims are filed on a quarterly basis, the end of the quarter in which the FIRC is received shall be the relevant date. 5.2 The Learned Advocate has placed reliance on the following decisions: - (i) Miramed Ajuba Solutions Pvt. Ltd. v. Commissioner of Service Tax-III, Chennai [2023 (4) TMI 214 CESTAT, Chennai] (ii) Commissioner of Service Tax, Goa v. Ratio Pharma India Pvt. Ltd. [2015 (39) S.T.R. 31 (Tri. LB)] (iii) Infosys BPO Ltd. v. Commissioner of Central Excise Service Tax, Bangalore, Service Tax-I [2022 (4) TMI 306 CESTAT, Bangalore] 5.3.1 The attention of the Bench has also been drawn to the Order of the Commissioner (Appeals) in their own case in Order-i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04 read with Notification No. 27/2012-C.E.(N.T.) dated 18.06.2012 is the date of the export invoice or the date of receipt of consideration in convertible foreign currency i.e., the date of FIRCs, and consequently, whether the value of export for which invoices have been raised prior to the period of one year but in respect of which consideration has been realized during the relevant quarter within the period of one year, can be added to the export turnover for computation of the eligible refund under Rule 5 of the CENVAT Credit Rules, 2004? 9.1 On study of various decisions of the judicial authorities including the co-ordinate Benches of the Tribunal, we find that Section 11B of the Central Excise Act, 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-C.E.(N.T.) date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of export invoice as the relevant date, rejected these refund claims as time barred. 10. We find that there is no ground that Section 11B mandates that the date of invoice must be considered as the relevant date. The residual category under Section 11B is the date of payment of duty. In case of export of services, as in these appeals, there is no payment of duty. As such, in various cases, 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 the CENVAT Credit Rules, 2004. Therefore, harmoniously reading the Export of Service Rules and Section 11B of Central Excise Act, 1944, the Tribunal has taken 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-C.E.(N.T.) dated 01.03.2016 was issued to remove the lacuna in the initial Notification No.27/2012-C.E.(N.T.) dated 18.06.2012. 11. We find that the above issue is resolved b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of mPortal (supra) that Section 11B will have no application with respect to refund under Rule 5 of CCR. 11. The definition of relevant date in Section 11B does not specifically cover the case of export of services. Hence, it is necessary to interpret the provisions constructively so as to give its meaning such that the objective of the provisions; i.e. to grant refund of unutilized Cenvat credit, is facilitated. By reference to the Service Tax Rules, 1994 as well as the successor provisions i.e. the Export of Services Rules, 2005, we note that export of services is completed only with receipt of the consideration in foreign exchange. Consequently, the date of Foreign Inward Remittance Certificate (FIRC) is definitely relevant. The Hon ble Andhra Pradesh High Court has held that the date of receipt of consideration may be taken as relevant date in the case of Hyundai Motors [2015 (39) S.T.R. 984 (A.P.)]. 12. The related question for consideration is whether the time limit is to be restricted to the date of FIRC or can be considered from the end of the quarter. The Tribunal in the case of Sitel India Ltd. (supra), has observed that the relevant date can be taken as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e back the credit of the difference between the amount claimed and amount sanctioned. 12.3 The procedure prescribes debiting the CENVAT Credit account before filing the refund claim and it also provides for taking back of the credit into their CENVAT Credit account of the amount not considered for sanction or where the refund claims are partially sanctioned. So, in view of this, we find that the provisions are very clear as to debiting or crediting of the CENVAT Credit maintained by an assessee prior to applying for refund or its sanction or otherwise. It has to be noted that accumulated CENVAT Credit lying unutilized does not carry any interest. The procedure prescribed for filing refund claims for unutilized CENVAT Credit in case of export of services under Rule 5 of the CENVAT Credit Rules, 2004 clearly lays down that the assessee is free to take back the credit of not sanctioned / partially sanctioned refunds. As such, payment of interest in the circumstances of these appeals is not provided for. 13. In view of the above, we order to set aside the impugned orders viz. Order-in-Appeal Nos. Order-in-Appeal Nos. 124 125/2016 dated 22.02.2016 and Order-in-Appeal Nos. 15 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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