TaxTMI 
TaxTMI 
2017 (4) TMI 1132
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....refund claim are hit by limitation. Some of the cenvat credits availed by the appellants were held to be ineligible on the grounds that the said services were not directly used for providing the output service. All these findings and decisions of the original authority, in each case, have been upheld by the lower appellate authority. 4. The details of period, refunds claimed and rejected etc. as recorded in the impugned order are tabulated as under :- S. No. OIO No./Date Period involved Refund claimed (Rs.) Refund rejected. (Rs.) 1. 24/2014 (R) dt. 7.5.2014 July 2012 to Sept'2012 8,66,264 2,06,484 2. 31/2015 (R)dt. 13.5.2015 July 2013 to Sept'13 2,04,138 46,215 3. 32/2015 (R) dt. 18.5.2015 Oct'13 to Dec'13 1,70,010/- 20,947 4. 88/2015 (R) dt. 31.7.2015 Jan'14 to March'14 1,17,556 10,222/- 5. Being aggrieved by the partial rejection of the refund claims as above, appellant has filed the present appeals. 6. Summary of the contentious issues and amounts involved in these appeals are summarized in the following chart submitted by the appellant : Appeal No. & Period Refund d....
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....it has to be the date on which the final products are cleared for export; however the judgment of Madras High Court relates to export of goods and not of 'services', and hence the ratio thereof would not be applicable to the present appeals. He also submits that in some cases, credits availed by them on input services have been held as ineligible credits, however these credits are very much permissible to be availed as per the provisions of the Cenvat Credit Rules, 2004. 8. On the other hand, on behalf of Revenue Shri B.Balamurugan (AC), Ld. A.R inter alia supports the adjudication and also submitted written submissions, which can be summarized as under : i. The appeal is not sustainable for the reasons that the learned first appellate authority clearly held in paras 5 to 8 of the impugned Order in Appeal in page Nos. 3 to 5 in Paper Book page Nos.11 to 13 annexed with appeal No.S/40568/2016 the available precedents in this regard to arrive his decision. ii. As per Rule 9(5) of the CENVAT Credit Rules, 2004, the burden of proof regarding admissibility of the CENAT Credit is casted upon the appellant. However, the appellant has not discharged their onus ....
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....9.1 Now, coming to the issue of rejected export turn over. 9.2 In appeal ST/40568/2011, it is seen that an amount of Rs. 43,77,632/- turnover has been rejected by original authority which decision has been upheld by the Lower appellate authority in the impugned order. 9.3 The reasons for the said rejection emerges in para-7.3 of the order of the original authority on page 22 of the appeal papers which is reproduced as under : "7.3 In the instant case, from the declaration and documents furnished, I find that although the claimants have realisedtotalling amount of Rs. 1,94,02,792/- during the relevant period, from the FIRC's furnished I notice that they have received payment amounting of Rs. 1,50,25,160/- relating to the export invoices raised between 25.06.2012 and 31.08.2012. I find that the claimants have not received any advances for export service for which the provision of service have not been completed during the relevant period. Similarly I also find that the claimants have not received any payment prior to the relevant period for which the services have been completed during this period. Accordingly, I proceed to determine the export turnover taking into....
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.... = (Export turnover of goods + Export turnover of services) Total turnover x Net CENVAT credit Where, - (A) "Refund amount" means the maximum refund that is admissible; (B) "Net CENVAT credit" means total CENVAT credit availed on inputs and input services by the manufacturer or the output service provider reduced by the amount reversed in terms of sub-rule (5C) of rule 3, during the relevant period; (C) "Export turnover of goods" means the value of final products and intermediate products cleared during the relevant period and exported without payment of Central Excise duty under bond or letter of undertaking; (D) "Export turnover of services" means the value of the export service calculated in the following manner, namely :- Export turnover of services = payments received during the relevant period for export services + export services whose provision has been completed for which payment had been received in advance in any period prior to the relevant period - advances received for export services for which the provision of service has not been completed during the relevant period; (E) "Total turnover" mea....
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....of has been effected only during the relevant quarter (ii) Payment received during the relevant quarter for export of services. There is no condition indicated that such payment will be related only for services exported during the relevant quarter. By implication, I do not find any bar to inclusion of payment received during the relevant period for export of services which have been effected in an earlier quarter. 9.8 Thus, relevant quarter/period for which refund has been claimed under Rule 5 ibid can very well also relate to export of services effected earlier. From a combined reading of the various portions of the definition of 'export services' in Rule 5 (D), in my view, the only requirement is that both receipt of payment and provision of export services should have been completed by, or within the quarter for which the refund claims under Rule 5 ibid are being made. That is, if payments had been received earlier and actual export effected only in the relevant period, claim of corresponding credit refund can only be made during the relevant period. So also, if any export of services has been effected earlier but inward remittances/FIRCs have been received ....
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....e and cannot be held as time barred." 9.11 Similar view has been taken in the Tribunal's decision in the case of Oceans Connect India Pvt. Ltd. Vs CCE Pune-II - 2016 (46) STR 858 (Tri.-Mumbai) "6. From the overall case, issues to be decided by me arises as under : (a) Regarding the refund under Rule 5 read with Notification No. 27/2012-C.E. (N.T.) whether export turnover shall include the receipt of foreign convertible currency as per the FIRC during the particular quarter or as per the date of invoice. (b) Whether the Cenvat credit is admissible in respect of event management service, insurance auxiliary service, rent-a-cab service, for providing exports services (c) In relation to refund under Rule 5 whether limitation of one year should be reckoned from the date of FIRC or from the end of particular quarter. Regarding the export turnover relevant provisions of Rule 5 is reproduced below : Rule 5. Refund of CENVAT Credit. - (1) A manufacturer who clears a final product or an intermediate product for export without payment of duty under bond or letter of undertaking, or a service provider who provides an output service w....