TaxTMI 
TaxTMI 
TaxTMI 
2026 (4) TMI 214
X X X X Extracts X X X X
X X X X Extracts X X X X
....5-ST/Appl- I/East/2018 Oct-15 to June-17 7453666/- 3399851/- 4053815/- The order was upheld in appeal by Commissioner (Appeals) 2. Briefly stated, the appellants were registered with Service Tax under the category of Business Support Services. The appellants had filed claims for refund of unutilized CENVAT credit availed on input services used for exporting the Business Support Services and Information Technology Software Services. The claims were filed under Rule 5 of the CENVAT Credit Rules, 2004 read with Notification 27/2012-CE (NT) dated 18.06.2012. They had submitted the relevant documents viz copy of export/Commercial invoices. Reconciliation statement with respect to FIRO and expert invoices, copy of bank statements/ ledger, unjust enrichment certificate by CA, copy of input invoices, copy of Cenvat credit Register etc. along with the refund application. 2.1 The Appellants had filed the online refund claim on quarterly basis for the period April-2014 to September-2015 on 18.01.2016 and for the period October-2015 to June-2017 on 22.09.2017 along with relevant documents under Rule 5 of the CENVAT Credit Rules, 2004 read with Notification 27/2012- C....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of goods exported out of India, where a rebate of excise duty paid is available in respect of the goods themselves or as the case may be, the excisable materials used in the manufacture of such goods, shall be the date on which the ship/aircraft, in which the goods are loaded, leaves India in case of export by sea or by air or the date on which the goods cross the land frontier in case of export by land or the date of despatch of goods by post office concerned to a place outside India in case of export by post, this provision cannot be applied to the case of cash refund of accumulated CENVAT Credit under Rule 5, as the claim is linked not only with accumulation of CENVAT Credit in respect of the inputs used in the manufacture of goods cleared for export under bond, the same is also linked with the manufacturer's inability to utilise this credit for payment of duty on the clearances for home consumption. For this reason only, the Tribunal in the case of Hindustan Motors Ltd. (supra) has held that in respect of cash refund of accumulated credit filed under Rule 57F(4), the limitation period prescribed in Section 11B is not applicable Same view has been taken by the Hon'ble Ma....
X X X X Extracts X X X X
X X X X Extracts X X X X
....applicable certain provisions of the Central Excise Act, 1944 to Finance Act, 94 as follows: "83. Application of certain provisions of Act 1 of 1944 The provisions of the following section of the Central Excise Act, 1944,as in force from time to time, shall apply, so far as may be, in relation to service tax as they apply in relation to a duty of excise: - sub-section (2A) of section 5A, sub-section (2) of section 9A, 9AA, 9B, 9C, 9D, 9E, 11B, 11BB, 11C, 12, 12A, 12B, 12C, 12D, 12E, 14, 15,15A, 15B, 31, 32, 32A to 32P (both inclusive), 33A, 34A, 35EE, 35F),35FF, to 35O (both inclusive}, 35Q, 35R, 36,36A,37A, 37B, 37C, 37D 38A and 40." 4.1 It is thus clear that specific provision including Section 11B of the Central Excise Act, 1944 has made applicable, the relevant time provided as follows: "Section 11B. Claim for refund of duty and interest, if any, paid on such duty . - "(1) Any person claiming refund of any 1 [duty of excise and interest, if any, paid on such duty] may make an application for refund of such 2 [duty and interest, if any, paid on such duty] to the Assistant Commissioner of Central Excise or Deputy Commissioner ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n such duty] paid by the manufacturer, if he had not passed on the incidence of such 2 [duty and interest, if any, paid on such duty] to any other person; (e) the 1 [duty of excise and interest, if any, paid on such duty] borne by the buyer, if he had not passed on the incidence of such 2 [duty and interest, if any, paid on such duty] to any other person; (f) the 1 [duty of excise and interest, if any, paid on such duty] borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify : Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government the incidence of 2 [duty and interest, if any, paid on such duty] has not been passed on by the persons concerned to any other person. (3) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any Court or in any other provision of this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section (2). (4) Every notif....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ory after having been removed from such factory for export out of India, the date of entry into the factory; (d) in a case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by notification in the Official Gazette in full discharge of his liability for the duty leviable on his production of certain goods, if after the manufacturer has made the payment on the basis of such rate for any period but before the expiry of that period such rate is reduced, the date of such reduction; (e) in the case of a person, other than the manufacturer, the date of purchase of the goods by such person; (ea) in the case of goods which are exempt from payment of duty by a special order issued under sub-section (2) of section 5A, the date of issue of such order; (eb) in case where duty of excise is paid provisionally under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof; [(ec) in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....xable services which are exported out of India; (h) rebate of service tax paid or payable on the taxable services consumed or duties paid or deemed to have been paid on goods used for providing taxable services which are exported out of India; (hh) rebate of service tax paid or payable on the taxable services used as input services in the manufacturing or processing of goods exported out of India under section 93A; (hhh) the date for determination of rate of service tax and the place of provision of taxable service under section 66C; (i) provide for the amount to be paid for compounding and the manner of compounding of offences; (j) provide for the settlement of cases, in accordance with sections 31, 32 and 32A to 32P (both inclusive), in Chapter V of the Central Excise Act, 1944 (1 of 1944) as made applicable to service tax vide section 83; (k) imposition, on persons liable to pay service tax, for the proper levy and collection of the tax, of duty of furnishing information, keeping records and the manner in which such records shall be verified; (l) make provisions for withdrawal of facilities or imposition of restricti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....2012, namely: In the said notification, in Paragraph 3, for clause (b), the following shall be substituted, namely:- "(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 the period specified in section 11B of the Central Excise Act, 1944 (1 of 1944) (ii) in case of service provider, before the expiry of one year from the date of- (a) receipt of payment in convertible foreign exchange, where provision of service had been completed prior to receipt of such payment, or (b) issue of invoice, where payment for the service had been received in advance prior to the date of issue of the invoice." 4.3 It is thus clear that vide such notification, amendment was carried out to provide for limitation of one year for the refund of service tax from the date of receipt of payment or issue of invoice etc. Non tariff notification has been issued under Central Excise though and deals, inter alia, with the service tax provision. As per the Authorized Representative by such l....