TaxTMI 
TaxTMI 
2018 (5) TMI 400
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.... the Commissioner was right in allowing the cenvat credit on certain input services which were rejected, by the lower authorities on various grounds. 2. The fact of the case is that the appellant are engaged in providing investment advisory services to its overseas group entities due to export of majority of its output services. Respondent filed the refund claim for the period July 2014 to September 2014 on 29.6.2015. The said refund claim was rejected by the original authority. The respondent filed appeal before the Commissioner (Appeals) for the part of t rejected claim. The Commissioner (Appeals) allowed majority of the claim to the respondent, except for Rs. 1,51,518/-, for which the respondent has not filed appeal. The Revenue is in appeal to the extent the Commissioner (Appeals) has allowed the refund of the respondent. 3. Shri Atul Sharma, Ld. Assistant Commissioner (A.R.) appearing on behalf of the Revenue reiterates the grounds of appeal. 4. Shri Prasad Paranjape the Ld. Counsel appearing on behalf of the respondent submits that as regard limitation in the case of respondent's own group-entities in Appeal No. ST/87435/2017 this Tribunal vide order No. A/85150-85151/2018....
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....the credit. The issue of inadmissibility of the input service was raised at the stage of sanctioning of the refund claim. Therefore in view of the settled position in law without specific adjudication in respect of denial of cenvat credit, refund cannot be rejected. In support of his submission he placed reliance on the following judgements: (i) Commissioner of Service Tax, Mumbai Vs. M/s. Sequoia Capital India Advisors Pvt. Ltd. M/s. Morgan Stanley India Service Pvt. Ltd. Order No. 85150-85151/2018 dt. 29.01.2018 (ii) Commissioner of Central Excise and Service Tax Vs. M/s. Span Infotech India Pvt. Ltd. 2018-TIOL-516-CESTAT-BANG-LB (iii) Commissioner of Customs, Central Excise & Service Tax, Hyderabad-IV Vs. M/s. Hyundai Motor India Engineering (P) Ltd. 2015-TIOL-739-HC-AP-ST 7. On careful consideration of the submissions made by both the sides I find that issue of limitation is no longer res integara as has been held in various judgements that in case of export of service relevant date for computing the limitation is date of receipt of convertible foreign exchange against the service exported and not from the date of invoice issued for providing the export service. The T....
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....und claim should be reckoned from the date of receipt of convertible foreign exchange. Since the department in appeal has raised only the issue of time limit for filing the refund claim, we are not going into any other issue. 5. Accordingly, the impugned order is upheld and Revenue's appeals are dismissed." 8. In view of the above judgements of this Tribunal in the appellant's own group entities case, I hold that refund cannot be denied on the ground of limitation. As regard the issue that whether the proposal of the Revenue to reduce the cenvat credit utilize for payment of service tax on the domestic clearances of the services for the purpose of considering the net cenvat credit availed for the purpose of formula, I do not agree with the Revenue's proposal for the reason that as per Notification No. 27/2012CE(NT) dt. 18.6.2012 in para 2(g) it provides as under: "2. Safeguards, conditions and limitations - Refund of CENVAT Credit under rule 5 of the s aid rules, shall be subjected to the following safeguards, conditions and limitations, namely: (a)............... (b)................. (c)................. (d)................. (e)................. (f).................... ....
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....xport 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" means sum total of the value of - (a) all excisable goods cleared during the relevant period including exempted goods, dutiable goods and excisable goods exported; (b) export turnover of services determined in terms of clause (D) of sub-rule (1) above and the value of all other services, during the relevant period; and (c) all inputs removed as such under sub-rule (5) of rule 3 against an invoice, during the period for which the claim is filed." From the above formula, and definition of net cenvat credit, it is clear that only cenvat credit availed on the inputs and inputs services by the manufacturer or the output service provider should be taken as 'net Cenvat credit'. The only amount which can be reduced is the amount which is reversed in terms of Sub-rule (5C) of Rule 3 during the relevant period. Therefore no amount which was utilized for payment of service tax in respect of domestic p....