TaxTMI 
TaxTMI 
2014 (6) TMI 593
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.... Advocate for the appellants main contention is that Notification No.5/2006 CE(NT) dated 14.3.2006 does not specify the relevant date for computing the time limit prescribed under Sec. 11B of the Central Excise Act. Similarly. Sec. 11B of the Act though defines the relevant date in different situation, the said section does not specify the relevant date in respect of refund of Cenvat Credit under Rule 5 of the Central Credit Rules. The ld. advocate quoted case laws in support of his contention that there is no time limit for filing the refund claim under Rule 5 of the Cenvat Credit Rules. Even if the time limit is to be computed it has to be computed from the date of receipt of the money in respect of the export of service or at least from the last day of the quarter for which the refund claim pertains (refund claims under Rule 5 are to be made on quarterly basis), the time limit is only a procedural and cannot be considered as mandatory or substantive law. The case law quoted by the ld. advocate are as under:- (1) CCE Jalandhar vs. JCT Ltd - 2013 (296) ELT 426 (Tri-Del). &n....
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.... services and the said relevant date will precisely fit into the scheme relating to export of services and therefore the relevant date has to be counted from the date of export. Ld. A.R. also stated that Export of Service Rules do not specify the day for the act of export but only details the condition to be satisfied so as to consider export of service. Ld. A.R. stated tht if we see the definition given in Explanation to Sec.11B, even when goods do not physically leave territorial water of the country but the said definition recognizes particular situation/time as act of export. Situation/time is such after which the exporter has no control over the goods. For example, the day goods are loaded on the ship, that day is considered as the relevant date for export. Similarly, if the goods are exported by Post, it is the date of dispatch of the goods by the Post Office. Similarly in the case of export of services, even though Explanation does not detail the relevant date but the day invoice is raised or the services are exported through e-mail or any other means will be the relevant date for export. 4. I have gone though the rival submission. The appellants are claiming refund of ac....
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....the claim is for refund of duty on excisable materials used in the manufacture of goods exported, it is the date when such goods are loaded on the ship or aircraft. I also observe that Rule 5 of the Cenvat Credit Rules which provides for refund of Cenvat Credit is only relating to the Cenvat Credit accumulated due to export of final product or used in providing output service. Thus in my view, a combined and harmonious reading of Rule 5, Section 11B and Notification 5/06-CE(NT) would indicate that the period of one year is to be computed from the date of export of the service. I find that this issue has come up before the Hon'ble Madras High Court the case of GTN Engineering (I) Ltd reported in 2012 (281) ELT 185 (Mad.). The relevant portion of the said judgement is as under:- "8. It is the contention of the learned counsel for the Appellant/Revenue that though the provisions of Section 11B of the Central Excise Act, 1944, entitles any person to claim refund of any duty of excise and interest, if any paid on such duty, by itself is not applicable to the claim of refund of CENVAT credit. To get ove....
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.... on the part of the officers in random verification of the said documents. 11. We have carefully considered the above said submissions. The relevant portion in Section 11B of the Central Excise Act 1944, reads as under: "11B. Claim for refund of [duty and interest, if any, paid on such duty. - (1) Any person claiming refund of any [duty of excise and interest, if any, paid on such duty] may make an application for refund of such [duty and interest, if any, paid on such duty] to the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] before the expiry of [one year] [from the relevant date] [in such form and manner] as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of [duty of excise and interest, if any, paid on such duty] in relation to which such refund is claimed was collected from, or paid by him and the incidence of such [duty or interest, if any, paid on such duty] had not been passed on by him to any other person." &....
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....sp; 14. The said notification prescribes a period of one year, as provided under section 11B of the Central Excise Act, for the purpose of making application in Form-A along with prescribed enclosures and also the relevant extracts of the records maintained under the Central Excise Rules. 2002, Cenvat Credit Rules, 2004 or service Tax Rules, 1994 in original. That application should be filed before the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be. For the purpose of finding out as to the relevant date for the purpose of making claim for refund of CENVAT credit Rule 5 should be made applicable. It is the contention of the learned counsel for the assessee that the provision defining relevant date does not cover the claim for refund of CENVAT credit. We may point out that when a statute empowered for such claim, the said provision must be read to find out as to the relevant date. Rule 5 specifies that "where any input or input service is used in the manufactures of final product which is cleared for export under bond or letter of undertaking as the case may be, or used in the intermediate product cleared for expo....
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....ection 11B of Central Excise Act, 1944 cannot be made applicable in so far as the period of limitation is concerned when a claim for CENVAT credit is made, a reading of the said provision shows that there is no reference to Rule 5. With great respect, we are not in agreement with the said judgment as the judgment was rendered based on the rules and the notification which are procedural in nature. As we have found that but for the provision of Rule 5 r/w notification, the respondent could not have filed the application for refund, he has to satisfy the limitation clause as provided under Section 11B of the Act. 18. In view of the above, the order of CESTAT holding that the limitation is not applicable to the facts in question to the case has to be set aside. Accordingly the same is set aside." 7. Ld. counsel for the appellants has quoted number of judgements of this tribunal as also Hon'ble High Court of Gujarat and that of Hon'ble Madhya Pradesh high Court in support of his contention. I find that while passing the judgment in the case of GTN Engineering (I) Ltd. the Hon'ble Madras High Court has taken into account both the judgments and disting....
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....use (b) is not to be read in isolation but has to be read with the opening part of Rule 3(2). The opening part of Rule 3(2) states that the conditions are to be satisfied to treat provision of any taxable service as export of service. One of the conditions is that the payment for such service is received in convertible foreign exchange. Such conditions are not unknown in excise and customs administration. Drawback is also subject to similar condition but it is not as if drawback is given only after receipt of payment. Even the definition of input and input services in the Cenvat Credit Rules, 2004 uses the word "used" and not "to be used", but even before such goods are used these are considered as input Another example, if goods are exported to Nepal and payment is received in rupees, rebate is not granted to exporter, even though goods are physically exported to Nepal. Similarly, here payment is expected to be in convertible foreign exchange. But this does not imply that unless payment is received, act of export of service has not taken place. Of course, if payment for export of service is to be obtained in rupees or non-convertible foreign exchange, then it will not be treated a....