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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 ..... he only ground on which the Adjudicating Authority has rejected the refund claim is that the filing of the refund claim was not within one year from the date of receipt of the payment in convertible foreign exchange. The foreign convertible exchange is received by the appellant for the period January 2017 to March 2017 between 10.01.2017 to 09.03.2017, therefore, the last payment for the quarter was received on 09.03.2017. It is found that for the exports of January 2017, FIRC was received on 10.01.2017, for exports in February 2017, FIRC was received on 10.02.2017, and for the 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. Conclusion - The one-year period for filing of the refund would commence from the end of the quarter January 2017 to March 2017, since the refund claims are filed on quarterly basis. The refund claim has been filed within one year from the end of the quarter January 2017 to March 2017 on 28.03.2018. The rejection of the refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant against this order was upheld by the Commissioner (Appeals) with regard to the refund claim amounting to Rs. 93,39,310/- and the refund claims for the balance amount were remanded to the adjudicating authority. As regards, the refund claim of Rs. 93,39,310/-, the Appellate Authority held as under: a. The refund claim filed by the appellant is barred by limitation as per Notification No. 14/2016-CE(NT) dated 01.03.2016. b. The first payment for the month of January 2017 was received on 10.01.2017, for February 2017 on 10.02.2017, and for March on 09.03.2017, and thus, the date of filing of the refund claim (i.e. 28.03.2018), for the period January 2017-March 2017 by the appellant is after the expiry of one year from the relevant date as defined under the Notification 14/2016. c. The Adjudicating Authority has accepted that all the other conditions and procedures mandated by law was adhered by the Appellant, i.e., all the conditions prescribed under Rule 6A of the Service Tax Rules, 1994 have been fulfilled and the payments for the relevant period have been realized. Aggrieved by the rejection of the refund claim on the ground of limitation, the present appeal is filed bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reted strictly/narrowly; in the impugned order, the Appellate Authority has relied upon the judgements of the Hon ble Supreme Court in Commissioner of Customs (Import) Vs. Dilip Kumar and Company - 2018 (361) E.L.T 577 (SC) and Novopan India Ltd., Vs. CCE C, Hyderabad 1994(73) E.L.T 769 (SC) and held that an exemption notification is to be read strictly and in order to avail the benefit of an exemption notification, the conditions laid down thereunder have to be strictly adhered to; the Appellate Authority has failed to appreciate that the refund claim was filed under Rule 5 of the Cenvat Credit Rules, read with the relevant notifications viz., Notification No. 27/2012 and Notification 14/2016; therefore, it is clear that the issue involved in the instant case is not with respect to interpreting a tax exemption provision or notification but is with respect to the benefits granted by the Cenvat Credit Rules; as has been clarified by the Board vide Circular No. 120/01/2010 ST dated 19.01.2010, the entire purpose of Rule 5 of the Cenvat Credit Rules, 2004 and the notifications issued under Rule 5 is to refund the accumulated credit to the exporters and zero rate the exports; therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure lapse; further the learned counsel has cited the case of Sajan Services Pvt. Ltd. Vs. Commissioner of Pune-II reported in 2021, TMI 1350-CESTAT Mumbai. 10. The learned Authorised representative (AR) for the Revenue fairly admits that the issue is covered by the decision of the Larger Bench of the Tribunal in the case of M/s Span Infotech (India) Pvt. Limited. 11. Heard both sides and perused the records. 12. The issues involved in this case are whether the time limit of one year for filing the refund claim under Rule 5 of the Cenvat Credit Rules, 2004 is to be counted from (i) the date of receipt of foreign exchange, or (ii) the end of the quarter in which the foreign exchange is received, in cases where the refund claims are filed on a quarterly basis? 13. We find that in this case the original authority has rejected the refund claim of ₹93,39,310/- on the grounds that 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. With regard to the other issues, the Adjudicating Authority has remanded the case and the same are not subject matter of this appeal. 14. We find that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me limit prescribed under Section 11B in respect of filing of refund claims is to be applied from the date of receipt of payment for export of services or can be considered from the end of the quarter in which such payments have been received. 10. After considering the provisions of the notifications issued under Rule 5 of the CCR, we note that there is a specific condition that the refund claims are required to be filed within the period specified under Section 11B. Consequently, we are of the view that completely ignoring the provisions of Section 11B may not be appropriate. This view is supported by the decision of Hon ble Madras High Court in the case of GTN Engineering (supra) wherein Hon ble High Court has disagreed with the view expressed by Hon ble Karnataka High Court in the 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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