Commissioner of CGST, Mumbai Central Versus Siemens Information Systems Ltd.
Service Tax
2018 (2) TMI 1040 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 29-12-2017
ST\/87515, 87519\/2017-ST[DB](ST\/Stay\/92962, 92964\/2017, ) – A\/91737-91738\/2017
Service Tax
Mr. Ramesh Nair, Member (Judicial) And Mr. Raju, Member (Technical)
\nShri.M.P. Damle, Assst. Comm. (AR) for appellant
\nShri.Mahesh Parbhekar, Sr. Manager for respondent
\nPer: Ramesh Nair
\n1. Revenue filed these appeals challenging the order of the Commissioner (Appeals) whereby the Commissioner (Appeals) held that the refund claim filed by the respondent under Rule 5 of Cenvat Credit Rules 2004 is not time barred referring to Notification No.14\/2016-CE (NT) dated 01\/03\/2016 whereby it was amended that the period of one year for filing the refund is from the date of receipt of payment in convertible foreign exchange. The contention of the department is that as per the un-amended provision of Noti<\/p>\n
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Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n remittance of convertible foreign currency, against export of service. The respondents have admittedly filed refund within one year from the receipt of convertible foreign exchange therefore, refund is within time limit. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n B. 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 the following order:- = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n 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 : = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n ), (zzn), (zzo), (zzp), (zzq), (zzs), (zzt), (zzv), (zzw), (zzx), [(zzy), (zzza), (zzzb), (zzzd), (zzze), (zzzf) and (zzzh),]; and = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n ……………. = = = = = = = =<\/p>\n Plain text (Extract) only<\/strong> = = = = = = = =<\/p>\n","protected":false},"excerpt":{"rendered":" Commissioner of CGST, Mumbai Central Versus Siemens Information Systems Ltd.Service Tax2018 (2) TMI 1040 – CESTAT MUMBAI – TMICESTAT MUMBAI – ATDated:- 29-12-2017ST\/87515, 87519\/2017-ST[DB](ST\/Stay\/92962, 92964\/2017, ) – A\/91737-91738\/2017Service TaxMr. Ramesh Nair, Member (Judicial) And Mr. Raju, Member (Technical) Shri.M.P. Damle, Assst. Comm. (AR) for appellant Shri.Mahesh Parbhekar, Sr. Manager for respondent Per: Ramesh Nair 1. … Continue reading “Commissioner of CGST, Mumbai Central Versus Siemens Information Systems Ltd.”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-10459","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/10459","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=10459"}],"version-history":[{"count":0,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=\/wp\/v2\/posts\/10459\/revisions"}],"wp:attachment":[{"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=10459"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=10459"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/goodsandservicetax.in\/GST\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=10459"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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\n4. We have carefully considered the submissions made by both sides. We find that during the relevant period, the relevant provisions of filing refund under Rule 5 was as per Notification No.27\/2012-CE (NT) dated 18\/06\/2012, the relevant para 3 (b) is reproduced below:
\n 3 (b) The application in the Form A along with documents specified therein and enclosures relating to the quarter for which refund is being claimed shall be filed by the claimant, before the expiry of the period specified in section 11B of the Central Excise Ac, 1944 (1 of 1944)
\n As per the plain reading of the above para it is seen that the refund claim should be filed before the expiry of the period specified in Section 11B of the Central Excise Act, 1944. As per <\/p>\n
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\n 4. Issue involved in these appeals is whether claims filed by the appellants are time-barred as held by lower authorities or in time as claimed by the appellants.
\n 5. These claims have been filed under Rule 5 of the Cenvat Credit Rules which reads as under :-
\n “Rule 5. Refund of Cenvat Credit. – Where any input or input service is used in the final products which is cleared for export under bond or letter of undertaking, as the case may be, or used in the intermediate products cleared for export, or used in providing output service which is exported, the Cenvat credit in respect of the input or input service so used shall be allowed to be utilized by the manufacturer or provider of output service towards payment of,
\n (i) Duty of excise on any <\/p>\n
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\n (a) Input of input service used in the manufacture of final product which is cleared for export under bond or letter of undertaking
\n (b) Input or input service used in providing output service which has been exported without payment of service tax, subject to safeguards, conditions and limitations, set out in the Appendix to this notification
\n Appendix
\n 1. The final product or the output service is exported in accordance with the procedure laid down in the Central Excise Rules, 2002, or the Export of Service Rules, 2005, as the case may be.
\n 2 ……………………….
\n 3 …………………………
\n 4 …………………………….
\n 5 ………………………………..
\n 6. The application in Form A, along with the prescribed enclosures and the relevant extra<\/p>\n
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\n (ii) the taxable service specified in sub-clause (d), and(zzzc) as are provided in relation to an immoveable property, of clause (105) of section 65 of the Act,-
\n (i) such taxable services which are provided and used in or in relation to commerce or industry and the recipient of such services is located outside India :
\n Provided that if such recipient has any commercial or industrial establishment or any office relating thereto in India, such taxable services provided shall be treated as export of services only if.-
\n (a) order for provision of such service is made by the recipient of such service from any of his commercial or industrial establishment or any office located outside India;
\n (b) service so ordered is delivered outside India and used in business outside India; and
\n (c) payment for such service provided is received by the service provider <\/p>\n
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\n (c) ……………………………..
\n (d) …………………………………
\n (e) …………………………………….
\n (ea) ……………………………………….
\n (eb) ……………………………………………
\n (ec) ………………………………………………..
\n (f) in any other case, the date of payment of duty.
\n 7. On going through above provisions for claiming refund under Rule 5 of the Cenvat Credit Rules, 2004, output is required to be exported in accordance with procedure laid down in Export of Service Rules, 2005 (as per 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. S<\/p>\n
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