2014 (12) TMI 203

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....ts are that the respondents are a 100% EOU in the service sector providing 'Scientific and Technical Consultancy Service'. The entire services are exported as per Rule 3 of the Export Service Rules, 2005. They filed the aforesaid refund claim on 15.4.2009 under the provisions of Rule 5 of Cenvat Credit Rules 2004 read with Notification No. 5/2006-CE(NT) dt. 14.3.2006. The adjudicating authority held that Cenvat Credit on their inputs to the tune of Rs. 2,92,238/- and on input services to the tune of Rs. 3,05,006/- all totaling to Rs. 5,97,244/- was availed and since the respondents were not in a position to utilize the Cenvat Credit, they were entitled to refund of the unutilized credit. In appeal, Revenue has contended that as per ....

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.... 5. The Ld. Counsel contended that since services are exported the relevant date for limitation given in Section 11B will be raising of invoices or date of payment will be the date of export of service. He stated that in the present case the refund claim was filed with the department on 15.4.2009 and the export invoices were raised on 21.4.2008, 30.4.2008, 19.5.2008, 30.5.2008, 3.6.2008, 6.6.2008, 10.06.2008, 27.6.2008 and 30.06.2008. The payment of service was received thereafter and, therefore, the refund has been filed within the time limit of one year under the provisions of Section11B. It was also stated that without prejudice to the above, time limit stipulated under Section 11B is not applicable in cases of refund claim made under ....

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....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 despatch of goods by the Post Office concerned to a place outside India;" ....

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....utsourcing (I) Pvt. Ltd. Vs. C.C. & S.T., Bangalore 2014 (34) STR 364 (Tri-Bang), it was held that the relevant date should be the date on which consideration is received, whether it is part or full or advanced.     (iii) Bechtel India Pvt. Ltd. Vs. Commissioner of Central Excise, Delhi 2014 (34) S.T.R. 437 (Tri. - Del.) held that the relevant date is the date of receipt of foreign exchange. To have a uniformity on the issue in view of the different judgments of the Tribunal, it is my considered view that the matter should be referred to Larger Bench. 8. The following question is hereby referred to the President for consideration by the Larger Bench. Whether the "relevant date" for deciding the limiting period of ....