2015 (8) TMI 1318 - AT - Service Tax

Refund claim rejected as time-barred under Central Excise Act.

M/s. Divine Wellness (P) Ltd. Versus CCE & ST- Kanpur

The Tribunal upheld the rejection of the refund claim, deeming it time-barred under Section 11B and Rule 5 of the Central Excise Act, 1944. The ... Period of limitation - Refund claim - export of taxable service i.e. health club and fitness centre service - unutilized cenvat credit - Held that:- it is found that the export proceeds were realized through the approved Banking channel by the appellant during the period from 16.04.2010 to 07.12.2010 and the refund claim was filed on 19.12.2011, which is beyond the stipulated time prescribed in section 11B of the Central Excise Act read with the Notification dated 14th May, 2006 issued by the Central Government. Therefore, there is no infirmity in the impugned order passed by the Commissioner (Appeals) in denying cenvat credit benefit to the appellant on the ground of limitation. In view of the settled position of law of Hon’ble Andhra Pradesh High Court in the case of M/s. Hyundai Motor India Engineering (P) Ltd. [2015 (3) TMI 1049 - ANDHRA PRADESH HIGH COURT], the refund application filed by the appellant is clearly barred by limitation as provided under section 11B of the Central Excise Act read with Rule 5 of the Cenvat Credit Rules. - Decided against the appellant Issues:Refund claim rejection based on time limitation under Section 11B of the Central Excise Act, 1944.Analysis:The appellant, engaged in personalized yoga classes and wellness consultations, filed a refund claim for unutilized Cenvat Credit on exported services. The claim was rejected as time-barred under Section 11B. The appellant argued that Rule 5 does not specify a time limit for refund claims. The appellant contended that even if a time limit of one year applies, it should start from the bank realization certificate issuance date. The appellant cited a Madhya Pradesh High Court judgment to support their stance.The respondent argued that the Notification under Rule 5 mandates filing refund claims within one year from the relevant date, considering the export date as relevant. The respondent cited judgments from Madras and Andhra Pradesh High Courts to support their position. The Tribunal considered the arguments and records, noting that the refund claim was filed beyond the prescribed time limit. The Tribunal concluded that the claim was rightly denied based on the limitation period under Section 11B and the Notification.The Tribunal distinguished the Madhya Pradesh High Court judgment cited by the appellant, stating it was not applicable in this case. The Tribunal also referenced a Madras High Court judgment disagreeing with the Madhya Pradesh judgment's interpretation. Additionally, the Tribunal mentioned an Andhra Pradesh High Court decision establishing the relevant date for calculating the time limit for refund claims. Ultimately, the Tribunal upheld the rejection of the refund claim, deeming it time-barred under Section 11B and Rule 5. The appeal was dismissed, affirming the Commissioner (Appeals) decision.