Custom, Excise & Service Tax Tribunal
Provana India Pvt Ltd vs Principal Commissioner Of Cgst-Delhi ... on 25 March, 2026
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
PRINCIPAL BENCH, COURT NO. 3
SERVICE TAX APPEAL NO. 51778 OF 2025
[Arising out of Order-IN-Appeal No. 07-08/ST/DLH/2019 dated 25.03.2019 passed by the
Commissioner (Appeals-I) Office, Central GST, Goods & Service Tax and Central Excise, Delhi]
M/s Provana India Pvt Ltd ......APPELLANT
st
C-31, 1 Floor, Acharya Niketan,
Phase-1, Mayur Vihar, New Delhi -110091
Vs.
Commissioner of CGST-Delhi East .......RESPONDENT
C.R. Building, I.P. Estate East Delhi-110002 WITH SERVICE TAX APPEAL NO. 51780 OF 2025 [Arising out of Order-IN-Appeal No. 07-08/ST/DLH/2019 dated 25.03.2019 passed by the Commissioner (Appeals-I) Office, Central GST, Goods & Service Tax and Central Excise, Delhi] M/s Provana India Pvt Ltd ......APPELLANT st C-31, 1 Floor, Acharya Niketan, Phase-1, Mayur Vihar, New Delhi -110091 Vs. Commissioner of CGST-Delhi East .......RESPONDENT C.R. Building, I.P. Estate East Delhi-110002 Appearance:
Ms. Ankita Goel and Ms. Vaishali Jain, C.A., for the Appellant Shri Rohit Issar, Authorised Representative for the Respondent CORAM:
HON'BLE MR. SOMESH ARORA, MEMBER ( JUDICIAL ) FINAL ORDER NO. 50642-50643/2026 Date of Hearing : 13.03.2026 Date of Decision: 25.03.2026 SOMESH ARORA:
Briefly the facts of the present case are as follows:- These two appeals have been filed by M/s Provana India Pvt. Ltd., as the appellants) against the orders of appellate authority as detailed in table below, 2 ST/51778 & 51780/2025 The Adjudicating Authority vide its orders had partially sanctioned the refund claim filed by the appellants.
S.No. O-I-O No. and Date Appeal No. Period Refund Amount Amount
and Date Amount Sanctioned rejected
Claimed (In Rs.) (In Rs.)
(In Rs.)
1. 12/WVV/REF/2018- 104-ST/Appl- Apr-14 to 3744262/- 2339533/- 1404729/-
19 dt. 15.10.2018 I/East/2018 Sept-15
2. 13/WVV/REF/2018- 105-ST/Appl- Oct-15 to 7453666/- 3399851/- 4053815/-
19 dt. 15.10.2018 I/East/2018 June-17
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- CE (NT) dated 18.06.2012. The Adjudicating Authority (AA) upon scrutiny of the documents/claims submitted by the appellant partially rejected the refund claim on the grounds that the appellants had filed the part of the refund claims after expiration of one year for filing the refund, so claims being time barred 3 ST/51778 & 51780/2025 could not be held admissible. The order when appealled against was equally rejected on point of limitation by the learned Commissioner (Appeals). The present appeals have therefore emanated from the impugned order of Commissioner (Appeals).
2.2 On the point of limitation, inter alia, party has taken various grounds in appeal, as are part of the record and have relied upon the decision of the Division Bench of this Tribunal in the matter of C.C.E., Jalandhar Vs. JCT Ltd dated 17.06.2013, as reported in 2013 (296) E.L.T. 426 (Tri.-Del) in which relevant para 6 is reproduced below:
"Coming to the question of limitation, which is in respect of the claim for April, 2002 to June, 2002 period, Notification No 11/2002-C.E. (N.T), dated 1-3-2002 issued under Rule 5 of the CENVAT Credit Rules, 2002 provides that the application in the prescribed form for cash refund of the accumulated credit, which the manufacturer cannot use for payment of duty on the clearances for home consumption must be submitted to jurisdictional Dy./Asstt. Commissioner "before the expiry of the period, specified in Section 11B of the Central Excise Act, 1944" along with proof of export and other records. Earlier, when the provisions of cash refund of accumulated credit were in Rule57F(4) of the Central Excise Rules, 1944, the notification issued under Rule 57F(4) had similar provisions. While the notification issued under Rute 5 of the CENVAT Credit Rules, 2002, simply provides that claim for cash refund under Rule 5 must be filed with the Dy./Asstt. Commissioner before expiry of the period specified in Section 11B. neither in this notification nor in Section 11B, there is any provision as to from which date the limitation period prescribed under Section 11B is to be counted. The relevant date for the purpose of counting limitation period under Section 11B is defined in Explanation B to Section 11B. But it does not cover the claims for cash refund of accumulated credit under Rule 5 of the CENVAT Credit Rules, 2002. While Explanation B(a) provides that "relevant date" in case 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 Madhya Pradesh High Court in the case of STI Ltd. (supra), wherein Hon'ble High Court has held that strict law of limitation provided under Section 4 ST/51778 & 51780/2025 11B of the Central Excise Act would not apply to a claim for cash refund of accumulated credit made in terms of the notification issued under Rule 57F, as in such a case the requirement of filing of claim within the limitation period provided under Rule 11B is procedural in nature rather than mandatory. Moreover any limitation for filing any claim, appeal, etc., prescribed under any law, has two components the period of limitation during which the claim, appeal, etc., is to be filed and the date from which the limitation period is to be counted. If the date from which limitation period is to be counted is missing, it would amount to not prescribing any limitation period. In view of this, we hold that the claim for the period from April, 2002 to June, 2002 is not hit by limitation."
2.3 It was held that when no limitation has been prescribed and also relevant date is not given, it would amount to not prescribing any limitation period and therefore it was held that the claim cannot be held barred by the limitation. She also relies on the decision of M/s Jyoti Overseas Pvt Ltd. Vs. C.C.E., Ranchi-II dated 23.02.2018, reported in 2018 (3) TMI 1374 - CESTAT New Delhi of the Single Member Bench of this Tribunal relying on the case of C.C.Ex. Jalandhar Vs. JCT Ltd. Counsel again indicated that when the statute does not prescribe the relevant date then the same cannot be read into and construed in the legislative provision. She thus pointed out that rejecting of the claim on the point of limitation without getting into the merits was therefore improper.
3. Learned Authorized Representative for the Department points out that the later notifications as brought out by virtue of Notification No. 14/2016- CE(NT) dated 01.03.2016 which dealt with CENVAT Credit, whereby the Cenvat Credit Rules were modified to provide as to where from the expiry of one year for service provider shall be counted had taken care of the lacuna. The notification was brought out w.e.f. 01.03.2016, therefore some portion of the same was covered of the demand of the cases, which involved period i.e. April 2014 to December, 2014.
4. The rival submission have been considered. It appears that the Section 83 of the Finance Act, 1994 makes applicable certain provisions of the Central Excise Act, 1944 to Finance Act, 94 as follows:
5
ST/51778 & 51780/2025 "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 of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of 1 [duty of excise and interest, if any, paid on such duty] in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such 2 [duty and interest, if any, paid on such duty] had not been passed on by him to any other person :
Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub-section (2) substituted by that Act : Provided further that the limitation of one year shall not apply where any 2 [duty and interest, if any, paid on such duty] has been paid under protest. (2) If, on receipt of any such application, the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise is satisfied that the whole or any part of the 1 [duty of excise and interest, if any, paid on such duty] paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund :
Provided that the amount of 1 [duty of excise and interest, if any, paid on such duty] as determined by the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise under the foregoing provisions sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to -
a) rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India;
(b) unspent advance deposits lying in balance in the applicant's account current maintained with the Principal Commissioner of Central Excise or Commissioner of Central Excise;
(c) refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification issued, under this Act;
(d) the 1 [duty of excise and interest, if any, paid on 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;6
ST/51778 & 51780/2025
(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 notification under clause (f) of the first proviso to sub-section (2) shall be laid before each House of Parliament, if it is sitting, as soon as may be after the issue of the notification, and, if it is not sitting, within seven days of its re-assembly, and the Central Government shall seek the approval of Parliament to the notification by a resolution moved within a period of fifteen days beginning with the day on which the notification is so laid before the House of the People and if Parliament makes any modification in the notification or directs that the notification should cease to have effect, the notification shall thereafter have effect only in such modified form or be of no effect, as the case may be, but without prejudice to the validity of anything previously done thereunder.
(5) For the removal of doubts, it is hereby declared that any notification issued under clause (f) of the first proviso to sub-section (2), including any such notification approved or modified under sub-section (4), may be rescinded by the Central Government at any time by notification in the Official Gazette.
Explanation. - For the purposes of this section, -
(A) "refund" includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India;
(B) "relevant date" means, -
(a) in the case of goods exported out of India where a refund 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, -
(i) if the goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, or
(ii) if the goods are exported by land, the date on which such goods pass the frontier, or
(iii) if the goods are exported by post, the date of despatch of goods by the Post Office concerned to a place outside India;
(b) in the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory for the purposes aforesaid;
(c) in the case of goods to which banderols are required to be affixed if removed for home consumption but not so required when exported outside India, if returned to a factory 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; 7
ST/51778 & 51780/2025
(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, the date of such judgment, decree, order or direction;]
(f) in any other case, the date of payment of duty."
4.2 The Cenvat Credit Rules, 2004 have been made as per Powers conferred by Section 94 of the Finance Act, 1944. It provide powers to make Rules under the Finance Act, 1944 and which reads as follow:-
"SECTION 94. Power to make rules. --
(1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the provisions of this Chapter. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely :-
(a) collection and recovery of service tax under sections 66 and 68; (aa) determination of the amount and value of taxable service, the manner thereof, and the circumstances and conditions under which an amount shall not be a consideration, under section 67;
(b) the time and manner and the form in which application for registration shall be made under sub-sections (1) and (2) of section 69
(c) the form, manner and frequency of the returns to be furnished under sub-sections (1) and (2) and the late fee for delayed furnishing of return under sub-section (1) of section 70 (cc) the manner of provisional attachment of property under sub- section (1) of section 73C;
(ccc) publication of name of any person and particulars relating to any proceeding under sub-section (1) of section 73D;
(d) the form in which appeal under section 85 or under sub-section (6) of section 86 may be filed and the manner in which they may be verified;
(e) the manner in which the memorandum of cross objections under sub-section (4) of section 86 may be verified;
(ee)The Credit of the service tax paid on the services consumed for providing a table service in the case where the services consumed and the services provided fall in the same category of taxable service] (eee) the credit of service tax paid on the services consumed or duties paid or deemed to have been paid on goods used for providing a taxable service;] (eeee) the manner of recovery of any amount due to the Central Government under section 87;
(f) provisions for determining export of taxable services;
(g) grant of exemption to, or rebate of service tax paid on, taxable 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;8
ST/51778 & 51780/2025 (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 restrictions (including restrictions on utilisation of CENVAT credit) on provider of taxable service or exporter, for dealing with evasion of tax or misuse of CENVAT credit;
(m) authorisation of the Central Board of Excise and Customs or [Principal Chief Commissioners of Central Excise or Chief Commissioners of Central Excise] to issue instructions, for any incidental or supplemental matters for the implementation of the provisions of this Act;
(n)any other matter which by this Chapter is to be or may be prescribed.
(3) The power to make rules conferred by this section shall on the first occasion of the exercise thereof include the power to give retrospective effect to the rules or any of them from a date not earlier than the date on which the provisions of this Chapter come into force. (4) Every rule made under this Chapter, Scheme framed under section 71 and every notification issued under section 93 shall be laid, as soon as may be, after it is made or issued, before each House of Parliament, while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry ofthe session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or notification or both Houses agree that the rule should not be made or the notification should not be issued, the rule or notification shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or notification." Vide amendments through the Notification No. 14/2016-CE (N.T) New Delhi dated 1st March, 2016, the Central Government in excise of Powers conferred in Rule 5 of the Cenvat Credit Rules, brought the following amendments:
"In exercise of the powers conferred by rule 5 of the CENVAT Credit Rules, 2004, the Central Board of Excise and Customs hereby makes the following amendment in the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 27/2012 CE. (N.T.) dated 18th June, 2012, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i) vide number G.S.R. 461(E), dated the 18th June, 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) 9 ST/51778 & 51780/2025
(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 legislative change carried out through the notification on Central Excise side as above, the Central Government has made up for deficiency as was pointed out by the aforesaid case of C.C.Ex. Jalandhar Vs. JCT Ltd, (cited supra). As per the Appellant the deficiency mentioned in the aforesaid case continues to exist in Section 11B in respect of service tax refund and relevant date thereof. Simply bringing in change in Cenvat Credit Rules through a notification issued which is a non tariff notification under Central Excise Act will not change the position specially when Section 11B has been borrowed by the Finance Act, 1944 for the purposes of refund and apart from Section 11B there does not exist any authority under Finance Act, 1944 for the purposes of allowing service tax refund and for calculating relevant date for the purposes of refund of Central Excise.
5. This Court has considered the rival submissions. It finds that the vital questions raised by the learned counsel above the applicability by the decision of C.C.Ex. Jalandhar Vs. JCT Ltd, dated 17.06.2013 reported in 2013 (296) ELT 426 (Tri-Del.) as well as the provision of Section 11B being amended and impact of borrowing Section 11B in Finance Act has not been examined at all by the Commissioner (Appeals). Since, the question raised by the learned counsel for the appellant are purely legal, the same therefore, deserve to be examined by the Learned Commissioner (Appeals) 10 ST/51778 & 51780/2025
6. In view of the foregoing position, the matter deserves to be remanded to be examined by the learned Commissioner to examine in respect of all legal aspects raised by the Learned Counsel on legality of Central Excise notification and for making it applicable without providing for in Section 11B and the effect of such Section being borrowed under Finance Act, 1994. Anomaly pointed out by the aforesaid decision of C.C.Ex. Jalandhar Vs. JCT Ltd, (Supra) may also be considered.
7. The appeals are therefore allowed by way of remand.
(Order pronounced on 25.03.2026) (SOMESH ARORA) MEMBER ( JUDICIAL ) Kailash