2018 (2) TMI 1040 – CESTAT MUMBAI – TMI – Refund claim – time limitation – N/N. 14/2016-CE (NT) dated 01/03/2016 – Rule 5 read with N/N. 27/2012-CE (NT) dated 18/06/2012 – Held that: – the period of one year, in case of export of service, shall be reckoned from the date of receipt of foreign exchange and not from any other date – In the admitted fact of this case, the refund claims were filed within one year from the date of receipt of foreign exchange. Therefore, irrespective of whether the amendment provision was brought from 01/03/2016, the refund claim filed by the respondent is well within the period specified under Section 11B – the refund is not time barred.
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The issue is covered by the judgement of this Tribunal in the case of Bechtel India Pvt. Ltd. [2013 (7) TMI 490 – CESTAT NEW DELHI], where it was held that In case of export of Services, export is complete only when foreign exchange is received in India. Relevant date of export of services is date of receipt of forei
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ervice exported. 2. Shri M.P. Damle, Ld. Assistant Commissioner (AR) appearing on behalf of the Revenue reiterating the grounds of appeal submits that the notification No.14/2016-CE (NT) was effective from 01/03/2016 whereas the period of refund involved in the present case is January 2014 to March 2014 and therefore, Ld. Commissioner erred in applying the amendment of 01/03/2016 for the period of this refund. Therefore, the impugned order is based on incorrect legal provision. 3. Shri Mahesh Parbhakar, Sr. Manager of the respondent company submits that even as per the unamended provision, the refund under Rule 5 was required to be filed within one year as specified in Section 11B of CEA, 1944. As per Section 11B of the CEA, 1944, the limit of one year is from the date of export. In case of export of service the date of export is the receipt of remittance of convertible foreign currency, against export of service. The respondents have admittedly filed refund within one year from the re
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means payment for such services provided is received by the service provider in convertible foreign exchange. As per these provisions irrespective of provision of service and raising invoices therefore the export is completed only when convertible foreign exchange is received by the service provider against the service exported. Accordingly, the period of one year, in case of export of service, shall be reckoned from the date of receipt of foreign exchange and not from any other date. In the admitted fact of this case, the refund claims were filed within one year from the date of receipt of foreign exchange. Therefore, irrespective of whether the amendment provision was brought from 01/03/2016, the refund claim filed by the respondent is well within the period specified under Section 11B. Therefore, the refund is not time barred. The issue is covered by the judgement of this Tribunal in the case of Bechtel India Pvt. Ltd., – 2014 (34) STR 437 (Tri-Del) wherein the Tribunal has passed
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t subject to such safeguards, conditions and limitations, as may be specified, by the Central Government, by notification. [Explanation. – For the purposes of this rule, the words output service which is exported means the output taxable services exported in accordance with the Export of Services Rules, 2005.] Condition, safeguards and limitation have been prescribed under Notification 5/2006, dated 14-3-2006 Relevant extract of which are reproduced below :- In exercise of the powers conferred by rule 5 of the Cenvat Credit Rules, 2004 (hereinafter referred to as the said rules ) and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue), No. 11/2002-Central Excise (N.T.), dated 1st March, 2002, published in the Gazette of India Extraordinary, vide number G.S.R. 150 (E), dated 1st March, 2002, the Central Government hereby directs that refund of Cenvat Credit shall be allowed in respect of : (a) Input of input service used in t
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, Cenvat Credit Rules, 2004 or the Service Tax Rules, 1994, in original, are filed with the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, before the expiry of the period specified in section 11B of the Central Excise Act, 1944. As per condition 1, output service is to be exported as per Export of Services Rules, 2005. Rule 3 of the Export of Services Rules, 2005 is reproduced below :- Rule 3. Export of taxable service. – The export of taxable service means,- (1) ………………….. (2) ………………………… (3) in relation to taxable services, other than, (i) the taxable services specified in sub-clauses (a), (f), (h), (i), (j), (l), (m), (n), (o), (p), (q), (s), (t), (u), (v), (w), (x), (y),\ (z), (zb), (zc), (zi), (zj), (zn), (zo), (zq), (zr), (zt), (zu), (zv), (zw), (zza), (zzc), (zzd), (zzf), (zzg), (zzh), (zzi), (zzj), (zzl)
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ertible foreign exchange; (iii) Such taxable services which are provided and used, other than in or in relation to commerce or industry, if the recipient of the taxable service is located outside India at the time when such services are received. Similarly relevant date as defined under Section 11B of Central Excise Act, is as under : Section 11B Explanation.- (B) relevant date means,- (a) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture of such goods, (i) if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, or (ii) if the goods are exported by land, the date on which such goods pass the frontier, or (iii) if the goods are exported by post, the date of dispatch of goods by the Post Office concerned to a place outside India. (b) ……………………. (c) &helli
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er condition 1 of the Appendix to Notification 5/2006), once service is exported refund claim can be filed subject to limitation as prescribed under Section 11B of the Act. In the instant case export of service is complete only when foreign exchange is received in India as per Export of Service Rules, 2005 (i). In the Section 11B, relevant date for refund of export of goods is date of export. Section 11B is made applicable for claiming refund under Rule 5 of the Cenvat Credit Rules as per condition 6 of Notification 5/2006. In case of export of Services, export is complete only when foreign exchange is received in India. Therefore relevant date of export of services is date of receipt of foreign exchange. In the present case all the four claims have been filed within 1 year from the date of receipt of foreign exchange and are therefore filed in time and cannot be held as time barred. 8. Appeal is allowed in above terms. 5. From the above decision, the issue in hand is already covered,
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