Custom, Excise & Service Tax Tribunal
Maersk Global Service Centres India Pvt ... vs Commissioner Of Gst&Amp;Cce (Chennai ... on 13 July, 2018
1
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
Appeal Nos. ST/42606 & 42607/2017
(Arising out of Orders-in-Appeal No. 87 & 88/2017 (CTA-II) dt.
31.07.2017 passed by the Commissioner of Central Tax (Appeals-II),
C.G.S.T & Central Excise.)
M/s. Maersk Global Service Centres (India) Pvt. Ltd. : Appellant
Vs.
Commissioner of S.T., C.G.S.T & Central Excise : Respondent
(Chennai South) Appearance:-
Shri. Karthik Sundaram, Advocate for the Appellant Shri S. Govindarajan, AC (AR) for the Respondent CORAM:
Hon'ble Shri P. Dinesha, Member (Judicial) Date of Hearing/Decision:23.05.2018 Date of Pronouncement:13.07.2018 Final Order No. 42070-42071 / 2018 There are two issues involved in these appeals and the first one is whether the application claiming refund under Section 11B was time barred under Section 11B of the Central Excise Act, 1944?
2. The Assistant Commissioner vide order in original dt. 30.06.2016 had sanctioned a refund of Rs. 19,30,065/- as against the 2 claim of Rs. 28,97,907/- .The Ld. AA was of the view that the relevant date for claiming refund is the date of export invoice for which the payment was received. In appeal, the Ld. Commissioner (Appeals) vide Order in Appeal Nos. 87 & 88/2017 dt. 31.07.2017 has rejected the appeals, thereby confirming the order of AA mainly on the ground that the time limit prescribed under Section 11B of the Central Excise Act could not be relaxed or ignored. The Ld. Commissioner, in his order, has relied on the following decisions:
(i) PAUL MASON CONSULTING INDIA (P) (LTD.) VS. CCE & ST, VADODARA [2016 (335) ELT. 153 (Tri-Ahmd.)]
(ii)CC, BANGALORE Vs. SPICE TELECOM [2006 (203) ELT. 538 (SC)]
3. During the course of hearing, I have heard Shri Karthik Sundaram, Advocate for the appellant and Shri. S. Govindarajan, DR for the Revenue. I have considered the documentary evidence as well as the decisions relied on by them. 4.1 I find that the issue with regard to interpretation of the time limit prescribed under Section 11B has been set at rest by the larger Bench, in the decision of C.C.E. & Cus. & S.T. Bengaluru Vs. Span Infotech (India) Pvt. Ltd. [2018 (12) G.S.T.L. 200 (Tri. - LB) and it has been held by the Hon'ble larger Bench as under: 3
"8. We have heard all connected parties in great length and perused the connected records. In the interest of bringing clarity to the issue on hand, we ignore the objection raised on jurisdiction and proceed to decide the issue on merit.
9. Rule 5 of the Cenvat Credit Rules, 2004 provides for refund of unutilized Cenvat credit, even after adjustment of the same for payment of duty of excise or service tax. The conditions, safeguards and limitations for consideration of such refund claims have been spelt out by the Government through notifications. Notification No. 5/2006 (up to 17-6-2012) and Notification No. 27/2012 (w.e.f. 18-6-2012) (as amended) has specified the conditions in this regard. These notifications specify that such refund claims are to be filed within the period specified in Section 11B. The relevant date specified under the above section leaves no room for doubt as far as export of goods is concerned. However as far as export of services is concerned, the various sub-sections specifying relevant date under Section 11B do not cover the case of export of services. Further, 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 the case of export of services. Hence, it is necessary to interpret the provisions constructively so as to give its meaning such that the objective of the provisions; i.e. to grant refund of unutilized Cenvat credit, is facilitated. By reference to the Service Tax Rules, 1994 as well as the successor provisions i.e. the Export of Services 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 relevant. The Hon'ble Andhra Pradesh High Court has held that the date of receipt of 4 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 that any beneficial amendment to the statute may be given benefit retrospectively but any provision imposing burden or liability on the public can be viewed only prospectively. Keeping in view the observations of the Apex Court, we conclude that in respect of export of services, the relevant date for purposes of deciding the time limit for consideration of refund claims under Rule 5 of the CCR may be taken as the end of the quarter in which the FIRC is received, in cases where the refund claims are filed on a quarterly basis."
4.2 I therefore, have to hold that the appellant's claim for refund is within the time limitation, as interpreted by the Hon'ble larger Bench (supra) and, therefore, allow the above ground with consequential reliefs, if any.
5. The second common issue involved in both the appeals is with regard to the denial of input Cenvat Credit on Air Travel Services which was denied as being an ineligible input service. The adjudicating authority, while arriving at the eligible refund, had reduced an amount of Rs. 60,012/- and Rs.68,793/- respectively for 5 both years which are the credits availed towards this service, from the total credit availed during the period of Rs. 24,69,317/- and Rs. 28,97,907/- respectively; and arrived at a net eligible Cenvat Credit of Rs. 24,09,306/- and Rs. 28,29,114/- respectively. On appeals, the Ld. Commissioner (Appeals) has adopted the very same findings of the adjudicating authority and has thus rejected the appeals against which, the appellant is prosecuting these appeals. I find that the above issue is identical to the one which I have decided, in the appellant's own case in ST/42454-42457/2017 (Final Order No. 42066-42069/2018 dt. 13.07.2018) and for the same reasons, I allow these appeals, with consequential reliefs, if any.
(Pronounced in open court on 13.07.2018) (P Dinesha) Member (Judicial) Sdd