Custom, Excise & Service Tax Tribunal
M/S. Paul Mason Consulting India Pvt. ... vs Commissioner Of Central Excise & S.T., ... on 4 December, 2015
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Zonal Bench, Ahmedabad Appeal No. : ST/13238,13239/2014 (Arising out of OIA-VAD-EXCUS-001-APP-176-2014-15 and OIA-VAD-EXCUS-001-APP-177-2014-15 both dated 17.06.2014, passed by Commissioner (Appeals) Central Excise, & S.T., Vadodara) M/s. Paul Mason Consulting India Pvt. Limited : Appellant (s) VERSUS Commissioner of Central Excise & S.T., Vadodara : Respondent (s)
Represented by :
For Appellant (s) : Shri Omkar Sharma, Advocate For Respondent (s) : Shri S.K. Shukla, Authorised Representative For approval and signature :
Mr. P.M. Saleem, Honble Member (Technical) 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3 Whether their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes CORAM :
Mr. P.M. Saleem, Honble Member (Technical) Date of Hearing / Decision : 04.12.2015 ORDER No. A/11785-11786/2015 Dated 04.12.2015 Per : Mr. P.M. Saleem The appellant herein has filed two appeals in respect of two Orders-in-Original and two Orders-in-Appeal, on the same issue for different period. Hence, both the appeals are taken up together for disposal.
2. The issue involved herein is a question of relevant date for time-limit for filing refund claim in respect of CENVAT credit accumulated as a result of services exported.
3. Heard both sides. The learned Counsel for the appellants submits that they are 100% EOU, have availed CENVAT credit on input and input services in or in relation to providing output services. As they were exporting the entire services, they had not utilised the CENVAT credit availed. Therefore, they sought refund of the accumulated CENVAT credit. Revenue has rejected their claims on the grounds that the said claim were filed after the time-limit of one year prescribed under Section 11B of the Central Excise Act, 1944. The learned Counsel submits that the said time-limit is not applicable in the present case. His contention is that Section 11B is applicable only to the refunds of duty and interest; whereas refund of CENVAT credit is governed by Rule 5 of Cenvat Credit Rules which has not prescribed any time-limit. He also contends that they have filed the refund claims within one year of the quarter-ending, pertaining to the quarter for which the refund claims are made. He also relied upon case laws, especially the decision of the Hon'ble Gujarat High Court in the case of CCE. & Cus., Surat vs. Swagat Synthetics 2008 (232) ELT 413 (Guj.). He also filed written compilation. His alternate submission is that the relevant dates could be taken as the date of export invoice. He relied upon the decision of the Tribunal in the case of Apotex Research Pvt. Limited & others vs. CCE. & ST, CC Bangalore 2014-TIOL-1836-CESTAT-BANG.
4. On the other hand, learned Authorised Representative for Revenue submits that the procedure for refund of CENVAT credit has been prescribed in Notification No. 27/2012-CE (NT) dated 18.06.2012, issued under Rule 5 of Cenvat Credit Rules, 2004. He draw attention of the Bench to Para 3(b) of the notification which reads as under:-
(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 by the claimant, before expiry of the period specified in Section 11B of the Central Excise Act, 1944. He therefore, contends that time-limit of one year prescribed under Section 11B will be applicable for refund of CENVAT credit also. He relies upon the decision of the Hon'ble Madras High Court in the case of GTN Engineering (I) Limited vs. CCE, Coimbatore 2011-TIOL-1037-CESTAT-BANG.
5. On consideration of the arguments of both sides and careful perusal of the records, we find force in the arguments of the learned Authorised Representative for Revenue as notification 27/2012-CE (NT) dated 18.06.2012 specifically mentions that the time limit mentioned under Section 11B would be applicable for refund of CENVAT credit. The next factor to be considered would be the relevant date for computing the time-limit prescribed under Section 11B for this aspect, we find force in the submission of the learned Counsel that the date of export invoice should be treated as the relevant date. The time limit of one year prescribed under Section 11B of the Central Excise Act would be computed from this date and refund claims submitted within the said time limit of one year from the said date would be eligible for refund. We find fort for our view from the decision of the Hon'ble Madras High Court in the case of GTN Engineering (I) Limited vs. CCE, Coimbatore (supra) read with the decision of the Honble Gujarat High Court in the case of CCE. & Cus., Surat vs. Swagat Synthetics (supra) and the Tribunal decision in the case of Apotex Research Pvt. Limited and Others vs. Commissioner of Customs, CCE & ST, Bangalore (supra). A careful and harmonious reading of these decisions would reveal that CENVAT credit though not a duty, by making Section 11B applicable to refund of CENVAT credit, CENVAT credit has been equated with duty, by way of Notification No. 27/2012 dated 18.06.2012. Therefore, the time limit would be as prescribed in Section 11B. However, as per the decision of the Hon'ble Gujarat High Court the relevant date would be the date when the cause for refund has arisen, and this would obviously be when the export has taken place, as is also held by this Tribunal in the case of Apotex Research Pvt. Limited (supra).
6. In view of the above analysis, we modify the orders of the lower authorities to the extent to hold that the refund claims filed within one year of export invoice would not be hit by the mischief of time-bar. The adjudicating authority may re-compute the refund claims of the appellants accordingly.
7. The impugned Orders-in-Original and Orders-in-Appeal are modified to the above extent.
8. Both the appeals filed by the appellants are disposed of on the above terms.
(Order dictated and pronounced in the open Court) (P.M. Saleem) Member (Technical) .KL 5