2019 (6) TMI 1598

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....have been set aside and have been remanded with the direction to re-examine the issue of limitation observing the refund claims to be barred by time. The findings in order-in-original while allowing some refund that the relevant date in respect of refund claims is the very first day of the relevant quarter is not acceptable on the ground of it by time barred. 2. The facts relevant to adjudicate this appeal, in brief, are as follows: The appellant herein is engaged in providing IT Enabled services to foreign customers and is registered under the category of 'Business Support Services' with effect from 21/01/2010. They have filed following applications to claim the refund of Cenvat credit under Notification No. 27/2012-CE dated 18/06/2012 is....

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.... been upheld vide the order under challenge. Being aggrieved the appellant is before us. 4. We have heard Mr. Kashish Kumar Gutpa, Ld. Advocate for the appellant and Shri G R Singh Ld. DR for revenue. 5. It is submitted on behalf of the appellant that the claims have been rejected forming an opinion that period of one year has to reckon from the date of invoice. Whereas, this issue has been settled by the Larger Bench of this Tribunal to the effect that the period of one year as is mentioned in Section 11B of Central Excise Act, 1944, which is made applicable to service tax by virtue of provisions of Section 83 of Finance Act, 1994, read with Rule 5 of Cenvat Credit Rules, clarifies that period of one year has to reckon from the date of e....

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....t date in respect of refund claim cannot be first date of the relevant quarter. It is rightly held to be the date of invoice as relevant for the purpose of ascertaining the time limit of one year. The appeal is, accordingly, prayed to be dismissed. 8. After hearing the parties and perusing the entire records we are of the opinion as follows: Rule 5 of Cenvat Credit Rules, 2004 is relevant in respect of refund of Cenvat Credit where manufacturer either clears the final product or intermediate product for export without payment of duty under bond or a service provider provides outputs service which is exported without payment of service tax on the basis of such formula as mentioned therein Rule 5 (1) (D) which reads as follows; "(D) "Expor....

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.... from the end of the quarter in which such payments have been received. The same has been answered in the following words; The definition of relevant date in Section 11B does not specifically cover the case of export of services. Hence, it is necessary to interpret the provisions constructively so as to give it meaning such that the objective of the provisions; i.e. to grant refund of unutilized Cenvat Credit, it facilitated. By reference to the Service Tax Rules, 1994 as well as the successor provisions i.e. the Export of Service Tax Rules, 2005, we note that export of services is completed only with receipt of the consideration in foreign exchange. Consequently, the date of Foreign Inward Remittance Certificate (FIRC) is definitely rele....