2018 (4) TMI 972 – CESTAT MUMBAI – TMI – Refund claim – relevant date – whether the relevant date is the date of invoice, date of Foreign Inward Remittance Certificate (FIRC) or the ends of the quarter for which the refund pertains? – Held that: – This issue has been considered by the Larger Bench of this Tribunal in the case of Commissioner of Central Excise & Service Tax, Bengaluru Vs. Span Infotech India Pvt. Ltd. [2018 (2) TMI 946 – CESTAT BANGALORE], where it was held 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 ARC is received, in cases where the refund claims are filed on a quarterly basis.
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For the purpose of refund under Rule 5 of CENVAT Credit Rules, the relevant date should be taken from the end of the quarter for which the refund pertains.
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Appeal dismissed – decided against Revenue. – Application No. S
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ords. In the interest of bringing clarity to the issue on hand, we ignore the objection raised on jurisdiction and proceed to decide the issue on merit. 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 17/06/2012) and Notification No.27/2012 (W.E.F. 18/06/2012) (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 s
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a 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 it 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 Service 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) STR 984(AP)] = 2015-TIOL-739-CH-AP-ST. 12. The related question for consider
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ty 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 ARC is received, in cases where the refund claims are filed on a quarterly basis, 14 With the above observations, we revert the matter to the regular Benches for deciding the respective appeals " 2. In view of the above Larger Bench's judgment, for the purpose of refund under Rule 5 of CENVAT Credit Rules, the relevant date should be taken from the end of the quarter for which the refund pertains. 3. Accordingly, the Revenue's appeals are not sustainable. The impugned order to the extent of issue involved in the present case is upheld and the applications also stand disposed of. (pronounced in court on 27/03/2018) – Case laws – Decisions – Judgements – O
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