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TMI Blog2024 (9) TMI 1495X X X X Extracts X X X X X X X X Extracts X X X X ..... of invoice of the input services procured by the appellant. It has been repeatedly held that the relevant date under section 11B of the Central Excise Act for calculating the time limit of one year is the date of receipt of payment for export of services. The Notification dated 14.03.2006, under which the refund was claimed by the appellant, also prescribes that the refund application should not be filed more than once for every quarter in a calendar year. A larger bench of the Tribunal in Span Infotech [ 2018 (2) TMI 946 - CESTAT BANGALORE ] examined the issue of limitation in the content of export of service and held that it has to be calculated from the last date of quarter in which the FIRC s are received. The Commissioner (Appeals), however, upheld the view taken by the Assistant Commissioner that the time limit of the one year has to be calculated from the date of invoice when the input services were procured by the appellant - In view of the decision of the larger bench of the Tribunal in Span Infotech, it will not be possible to sustain this view. The impugned order dated 09.08.2012 passed by the Commissioner (Appeals), therefore, deserves to be set aside and is set aside - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g allegations: (i) The documents submitted by the appellant were not sufficient to determine the exact nature of service provided by the appellant; (ii) The appellant was fully EOU, registered under the STPI scheme for the development and manufacture of computer software/IT enabled services which were taxable under the Central Excise Act. Hence, the appellant was required to file the refund application before the jurisdictional Assistant Commissioner of Central Excise. Alternatively, the appellant was required to submit documents in order to establish that the services fell under the purview of BAS; (iii) The appellant had claimed refund for input services related to staff welfare, which could not be considered to be used in providing output services . The appellant was, therefore, not eligible to claim CENVAT credit with respect to these input services ; and (iv) The appellant had failed to provide necessary documents in support of the refund claim, such as contract/agreement between the appellant their client, invoices of input services, copy of ST-3 returns for the relevant period along with challans/GAR-7, invoices issued by the appellant for the services exported to their clie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all such input services used for providing output service upto 19.03.08 are time barred. ***** Following are the details of invoices which are admissible rest are time barred as per Section 11B of the Central Excise Act, 1944 (as amended): S. No. Name of Party Invoice No. Date of Payment Cenvat Credit involved 1. Price Water House Cooper DZN-074/08 27.03.08 9412 2. Ashwin Travels 093-2008 25.03.08 870 3. Ashwin Travels 090 25.03.08 825 4. Ashwin Travels 089 25.03.08 396 5. Ashwin Travels 088-2008 31.03.08 1282 6. G4S Securities 016465/DRO 25.03.08 3708 7. Elements Manpower IHG080102 25.03.08 2101 8. Ashwin Travels 101-2008 31.03.08 845 9. Ashwin Travels 102-2008 31.03.08 104 10. VSNL 2008/2008/03/028/5824 31.03.08 729 11. Ashwin Travels 103-2008 31.03.08 282 12. Janus Associates 93 31.03.08 1347 Total 21901 The party has filed refund claim of Rs. 2204744 for the period Oct 07 to March 08. The Cenvat credit input amounting to Rs. 21901 is admissible and rest Rs. 21,82,843/- (Sl. No. bearing 1 to 266, Sl. No. bearing 1, 2, 4 to 160, 167 to 210) of the Declaration certified by the statutory Auditors required under Board Circular No. 120/01/2010-ST dated 19.01.10) becomes inadmissible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of receipt of payment for export of the services. Further, Central Board of Excise and Customs [CBEC] by Circular dated 19.01.2010 has also clarified that in cases where service providers were exporting 100% of their services, refund of CENVAT credit would be granted irrespective of when the credit was taken; and (iv) The appellant had correctly filed by the refund application under rule 5 of the 2004 Credit Rules read with Notification dated 14.03.2006. The said Notification prescribes that a refund application should not be filed more than once for every quarter in a calendar year. On the basis of the aforesaid Notification, the Courts have calculated the time limit of one year from the last date of quarter in which FIRC s are received. In this connection, reliance has been placed on C.C.E., Cus. S.T., Bengaluru vs. Span Infotech (India) Pvt. Ltd.[ 2018 (12) GSTL 200 (Tri.-LB)] . 13. Shri Sanjeev Kumar Ray, learned authorized representative appearing for the appearing for the department, however, supported the impugned order. Learned authorized representative submitted that a refund claim under rule 5 of the 2004 Credit Rules has to be filed within the time prescribed u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of the Tribunal in Span Infotech examined the issue of limitation in the content of export of service and held that it has to be calculated from the last date of quarter in which the FIRC s are received. The relevant observations are as follows: 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 17-6-2012) and Notification No. 27/2012 (w.e.f. 18-6-2012) (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 leaves no room for doubt as far as export of goods is concerned. However as far as export of services is concerned, the various sub-sections specifying relevant date under Section 11B do not cover the case of export of services . Further, the exporters of services have been given the option to file claims for such refunds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sentially, 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. (emphasis supplied) 20. The Commissioner (Appeals), however, upheld the view taken by the Assistant Commissioner that the time limit of the one year has to be calculated from the date of invoice when the input services were procured by the appellant. 21. In view of the decision of the larger bench of the Tribunal in Span In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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