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TMI Blog2024 (12) TMI 1406X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of the case are that the appellant availed the cenvat credit of service tax paid on the input services to provide the export services under Cenvat Credit Rules, 2004, which remained unutilised, hence the appellant filed a refund application on 28.03.2018, seeking refund of the said unutilised CENVAT credit under Rule 5 of the Cenvat Credit Rules, 2004 read with Notification No. 27/2012-CE(NT) dated 18.06.2012 as amended by Notification No. 14/2016-CE(NT) dated 01.03.2016. 3. A Show cause notice dated 10.05.2018 was issued proposing to reject the refund claim, which was confirmed by the adjudicating authority vide order-in-original dated 26.03.2019. The adjudicating authority rejected the refund claim on the following grounds. Sl. No. Reasons for denial Amount (in Rs.) 1 The refund claim filed by the appellant is hit by limitation, since the refund claim was not filed within one year from the date of receipt of payment in convertible foreign exchange, and thus, the refund claim is time barred. 93,39,310 2 Invoice-wise details and invoice copies pertaining to the refund claim of CENVAT credit have not been produced 1,54,374 3 The appellant has not furnished the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tre Vs. Commissioner of Service Tax, Chennai - 2023 (9) TMI 1066 - CESTAT Chennai 6. The learned counsel contended that; the refund claim has been filed for the period, January 2017 to March 2017 and the FIRCs were received, subsequently, i.e., between 10.01.2017, to 09.03.2017; considering that the time limit of one year has to be calculated from the end of the quarter in which the FIRC is received, the refund claim filed by them on 28.03.2018 is within limitation; in fact, they have filed the refund claim within one year from the last date of the quarter for which the refund claim was to be filed i.e., before 31.03.2018; and also within one year from the end of the quarter in which the FIRC is received; hence refund claim has been wrongly rejected by the Appellate Authority; there is no legal basis for an invoice-wise calculation of limitation period, especially since such condition has not been mentioned in the applicable statutory provisions or the notification thereof; assuming without conceding that the time limit of one year for filing, the refund claim has to be counted from the date of receipt of foreign exchange, part of the refund claim has been filed within the relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Dilip Kumar (supra) and similar judgements shall apply only while interpreting exemption notification and not while construing a beneficial provision like the Cenvat Credit Rules; the power to grant exemption from service tax is prescribed under Section 93 of the Finance Act, 1994, only a notification issued under the provisions of Section 93 of the Act can be termed as an exemption notification; the relevant Notifications 27/2012-CE and 14/2016-CE were both issued under Rule 5(1) of the Cenvat Credit Rules, 2004 to notify the procedure, safeguards, conditions, and limitations for claim of refund; the said notifications have admittedly not been issued under Section 93 of the Finance Act, 1944, hence they cannot be termed as exemption notifications; therefore, the impugned order has erroneously relied upon the judgement of the Hon'ble Supreme Court in Dilip Kumar (supra). 9. The learned counsel further submits that; the substantive benefit cannot be denied to the appellant due to procedural lapse; the Hon'ble Supreme Court in Mangalore Chemicals and Fertilisers Ltd. Vs. Deputy Commissioner reported in 1991 (55) E.L.T, 437 and Commissioner of Central Excise Vs. Hari Chand Shri Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exports in March, the FIRC was received on 09.03.2017, so for the quarter January to March 2017, the refund claim has to be filed before 31 March 2018, in the subject case appellant has filed refund claim on 28.03.2018, which is within one year from the quarter ending January-March 2017. 16. In this regard, we find that the Larger Bench of the Tribunal in the case of M/s Span Infotech (India) Private Limited, has held that:- "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-sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 1-3-2016. 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." 17. In view of the above decision of the Tribunal, we find that in this case the one-year period for filing of the refund would com ..... X X X X Extracts X X X X X X X X Extracts X X X X
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