TaxTMI 
TaxTMI 
2018 (2) TMI 946
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....led out, after hearing the Bar on the issue, I find that the issue that falls for consideration is whether the time limit prescribed under Section 11B of the Central Excise Act, 1944 in respect of filing of refund claims whether has to be considered from the end of the quarter as prescribed under Rule 5 of CENVAT Credit Rules, 2004 read with Notification No.5/2006 dt. 14/03/2006 as amended by Notification No.27/2012 or should be applied from the date of receipt of payment for export of services. 2. It was brought to my notice by the Bar that the Bench at Bangalore by Final Order No.21636-21640/2017 dt. 05/04/2017 has held that provisions of Section 11B will be applicable from the date of receipt of payment for export of services, despite there being a condition mentioned for filing of refund claims once in a quarter and held that time period of one year from the end of quarter is inapplicable in view of the judgment of Hon'ble High Court of Madras in the case of CCE Vs. GTN [2012(281) ELT 185] at the same time. It was brought to my notice by the Bar that same issue has been decided by the Division Bench of the Tribunal in the case of CST, Mumbai-II Vs. Sitel India Ltd. [20....
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....ied in Section 11B of the Central Excise Act, 1944.(CEA)" In Notification No.27/2012, such specification is found in para 3(b). The learned counsel submitted that Section 11B of the CEA provides for a time limit of one year from the "relevant date". But when the definition of relevant date is considered as per sub-clause 5(B) of Section 11B, it may be seen that in sub-clause (a) which is in respect of goods exported, the relevant date has been specified but as far as export of services is concerned, there is no applicable sub-clause. Hence the learned counsel argued that only the period of one year specified in Section 11B is relevant for the purposes of refund under Rule 5 of CCR, the relevant date should be ignored. iii. The learned counsel referred to the Export of Services Rules, 2005 in which Rule 3(2) specifies that the taxable service shall be treated as 'export of service' only when the payment for such service is received by the service provider in convertible foreign exchange. Even for the earlier period when the Service Tax Rules, 1994 was in vague. Erstwhile Rule 6A specified the same condition. The learned counsel argued that in view of the a....
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....sh, learned AR on behalf of the Revenue. His submissions are summarized below:- i. The conditions, safeguards and limitations as far as refund of unutilized CENVAT credit under Rule 5 of CCR has been specified through Notification No.5/2006 (for the period up to 17/06/2012) and subsequently by Notification No.27/2012 (w.e.f. 18/06/2012). Both the notifications clearly specified that such refund claims shall be filed before the expiry of the period specified in Section 11B ibid. Accordingly, he submitted that the time limit specified in Section 11B cannot be ignored. ii. The "relevant date" for determining the one year time limit under Section 11B is specified clearly in respect of export of goods. However the same has not been done in respect of export of services. However, in this connection, the amendment carried out in Notification No.27/2012 by Notification No.14/2016(NT) dt. 01/03/2016 is relevant and is as follows:- "(b) The application in the Form A along with the documents specified therein and enclosures relating to the quarter for which refund is being claimed shall be filed as under: (i) in case of manufacturer, before the expiry of th....
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....urther the exporters of services have been given the option to file claims for such refunds once in a quarter and in respect of 100% EOUs, once in a month. The issue referred to Larger Bench is whether the time limit prescribed under Section 11B in respect of filing of refund claims is to be applied from the date of receipt of payment for export of services or can be considered from the end of the quarter in which such payments have been received. 10. After considering the provisions of the Notifications issued under Rule 5 of the CCR, we note that there is a specific condition that the refund claims are required to be filed within the period specified under Section 11B. Consequently, we are of the view that completely ignoring the provisions of Section 11B may not be appropriate. This view is supported by the decision of Hon'ble Madras High Court in the case of GTN Engineering (supra) wherein Hon'ble High Court has disagreed with the view expressed by Hon'ble Karnataka High court in the case of mPortal (supra) that Section 11B will have no application with respect to refund under Rule 5 of CCR. 11. The definition of relevant date in Section 11B does not specifically cover th....