TaxTMI 
TaxTMI 
2023 (6) TMI 11
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....pellants herein, have filed these eight appeals against the Order-in-Appeal Nos. 124 & 125/2016 dated 22.02.2016 passed by the Commissioner of Service Tax (Appeals-I), Chennai and also Order-in-Appeal Nos. 15 to 20/2017 (STA-II) dated 20.02.2017 passed by the Commissioner of Service Tax (Appeals-II), Chennai, regarding the partial sanction / partial rejection of their refund claims by the refund sanctioning authorities. 2. As all these appeals involve an identical issue regarding interpretation of time-bar under Section 11B of the Central Excise Act, 1944, they are taken up together for disposal by this common order. 3.1 Brief facts of the case are that the appellant, who were registered under Service Tax, are providing services under the category of 'advertising agency service' and 'business auxiliary service'. The appellants have been exporting the said services to various clients located outside India and so, have been claiming refund of unutilized input service tax credit under Rule 5 of the CENVAT Credit Rules, 2004. 3.2 The appellants have filed refund claim for the quarter April 2012 to June 2012 on 27.03.2013 for sanction of refund of Rs.40,28,643/- and similarly, anothe....
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.....2016 and also the provisions of the amending Notification No. 14/2016-C.E.(N.T.) dated 01.03.2016 to Notification No. 27/2012-C.E.(N.T.) dated 18.06.2012. However, the Department has filed appeals against these sanction of refunds on the plea that the amendment made vide Notification No. 14/2016-C.E.(N.T.) will be prospective and would not have retrospective effect and as certain invoices were time-barred considering the dates of the export invoices, these were required to be excluded in computation of the export turnover. The lower appellate authority has allowed the appeals filed by the Department vide Order-in-Appeal Nos. 15 to 20/2017 (STA-II) dated 20.02.2017, as per the details given below: - CESTAT Appeal No. Period Refund claim date Refund Amt. (in Rs.) OIO No.& dt. Amount Sanc- tioned (in Rs.) Amount Reje- cted (in Rs.) Reje- ction acce- pted by Ad2pro Rejection amount admitted ST/ 41101/ 2017 July 2013 to Sep 2013 11th June 2014 37,91,111/- 48/2016 dt. 01.07.2016 37,40,940/- 50,171/- Yes 50,171/- ST/ 41102/ 2017 April 2014 to June 2014 07th January 2015 69,88,441/- 51/2016 dt. 01.07.201....
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....in which the FIRC is received shall be the relevant date. 5.2 The Learned Advocate has placed reliance on the following decisions: - (i) Miramed Ajuba Solutions Pvt. Ltd. v. Commissioner of Service Tax-III, Chennai [2023 (4) TMI 214 - CESTAT, Chennai] (ii) Commissioner of Service Tax, Goa v. Ratio Pharma India Pvt. Ltd. [2015 (39) S.T.R. 31 (Tri. - LB)] (iii) Infosys BPO Ltd. v. Commissioner of Central Excise & Service Tax, Bangalore, Service Tax-I [2022 (4) TMI 306 - CESTAT, Bangalore] 5.3.1 The attention of the Bench has also been drawn to the Order of the Commissioner (Appeals) in their own case in Order-in-Appeal Nos. 534-536/2016 dated 01.09.2016 wherein it was held that the date of receipt of consideration would be the relevant date under Section 11B of the Act and not the date of the export invoices. It has also been submitted that the above finding has been accepted by the Department as evident from the Appeal Nos. ST/40175-40177/2017 filed by the Department against the said Order-in-Appeal dated 01.09.2016, wherein it has been stated as under: - "The Commissioner (A) observed that the relevant date of export of service is the receipt of payment in convertible for....
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....ial authorities including the co-ordinate Benches of the Tribunal, we find that Section 11B of the Central Excise Act, 1944 has been drafted to prescribe a procedure for claiming of refund of Central Excise Duty under various circumstances within one year from the relevant date. The 'relevant date' has been defined in the explanation to this Section for various purposes. As far as the export of services is concerned, no relevant date was prescribed in this Section because this was meant for refund of duty of excise and not for export of services. Since the Notification No. 27/2012-C.E.(N.T.) dated 18.06.2012 required the claim to be made before the expiry of a period specified under Section 11B and this Section does not specify what is the relevant date in case of export of services, the Tribunal has, in a series of decisions, held that relevant date in case of export of services is the date of realization of the foreign exchange. The reason for this is the export of services is not complete unless the foreign exchange is realized as per Rule 3(2)(b) of Export of Services Rules, 2005. Therefore, unless the foreign exchange is realized, the export is not complete and therefore the r....
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.... of services is not entitled to claim refund under Rule 5 of the CENVAT Credit Rules, 2004. Therefore, harmoniously reading the Export of Service Rules and Section 11B of Central Excise Act, 1944, the Tribunal has taken a view that in case of export of services, the relevant date must be the date of realization of foreign exchange. For this reason only, an amending Notification No. 14/2016-C.E.(N.T.) dated 01.03.2016 was issued to remove the lacuna in the initial Notification No.27/2012-C.E.(N.T.) dated 18.06.2012. 11. We find that the above issue is resolved by the Larger Bench decision of the CESTAT in the case of Commissioner of Central Excise, Customs & Service Tax, Bengaluru v. M/s. Span Infotech (India) Pvt. Ltd. [2018 (12) G.S.T.L 200 (Tri. - LB)] wherein it was held that 'relevant date' for refund of unutilized CENVAT Credit in case of export of services to be taken as the end of the quarter in which the FIRC is received since the prescribed procedure states that the refund claims are to be filed for every quarter. The relevant portion of the order is reproduced below: - "9. Rule 5 of the Cenvat Credit Rules, 2004 provides for refund of unutilized Cenvat credit, even aft....
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....ign exchange. Consequently, the date of Foreign Inward Remittance Certificate (FIRC) is definitely relevant. The Hon'ble Andhra Pradesh High Court has held that the date of receipt of consideration may be taken as relevant date in the case of Hyundai Motors [2015 (39) S.T.R. 984 (A.P.)]. 12. The related question for consideration is whether the time limit is to be restricted to the date of FIRC or can be considered from the end of the quarter. The Tribunal in the case of Sitel India Ltd. (supra), has observed that the relevant date can be taken as the end of the quarter in which FIRC is received since the refund claim is filed for the quarter. 13. Revenue has expressed the view that relevant date in the case of export of services may be adopted on the same lines as the amendment carried out in the Notification No. 27/2012, w.e.f. 1-3-2016. Essentially, after this amendment the relevant date is to be considered as the date of receipt of foreign exchange. While this proposition appears attractive, we are also persuaded to keep in view the observations of the Hon'ble Supreme Court in the case of Vatika Township (supra), in which the Constitutional Bench has laid down the guideline....