Custom, Excise & Service Tax Tribunal
K Bit Brave Sourcing Pvt Ltd vs Cst Ch - Iii on 10 July, 2018
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
Appeal No. ST/41185/2017
(Arising out of Order-in-Appeal No. 33/2017 (STA-II) dated
21.2.2017 passed by the Commissioner of Service Tax
(Appeals - II), Chennai)
M/s. K. Bit Brave Sourcing Pvt. Ltd. Appellant
Vs.
Commissioner of GST & Central Excise
Chennai Respondent
Appearance None for the Appellant Shri S. Govindarajan, AC (AR) for the Respondent CORAM Hon'ble Ms. Sulekha Beevi C.S., Member (Judicial) Date of Hearing / Decision: 10.07.2018 Final Order No. 41965 / 2018 Brief facts are that the appellants are engaged in providing services under the category of business auxiliary service, fashion design and also received various input services like manpower recruitment and supply agency service, management or business consultant service etc. for providing the output service. They filed refund claim under Rule 5 of CENVAT Credit Rules, 2004 on 30.9.2013 seeking refund of 2 unutilized input service credit to the tune of Rs.29,53,159/-. Show cause notice was issued proposing to reject the refund claim as being time-barred. After due process of law, the original rejected the refund claim, which was upheld by the Commissioner (Appeals). Hence this appeal.
2. None appeared for the appellant, though notice of hearing was issued. On 22.5.2018, the matter was posted for hearing today i.e. 10.7.2018 as last chance. Still there is no appearance for the appellant. The matter is therefore taken up for disposal after hearing the ld. AR for Revenue and on perusal of records.
3. The appellant has stated in the grounds of appeal that the department has wrongly rejected the refund claim on the ground of limitation. The period of one year has to be computed from the date of receipt of FIRC and not the date of invoice in the case of export of goods. They have relied on the judgment of the Hon'ble Karnataka High Court in the case of mPortal India Wireless Solutions Pvt. Ltd. - 2012 (27) STR 134 (Kar.). In page 20 of the appeal memo, it is stated by them that if the period of one year is computed from the FIRC, the date of refund claim is well within the time. The FIRC used for computing export turnover are dated October 2012 to December 2012. Hence the last date of filing the refund claim would be before October 2013. The appellants have filed the 3 refund claim on 30.9.2013 which is well within the prescribed time limit of one year.
4. The ld. AR Shri S. Govindarajan supported the findings in the impugned order.
5. Heard both sides.
6. The issue that arises for consideration is whether the refund claim is barred by limitation. The authorities below have applied the decision in the case of Commissioner of Central Excise, Coimbatore Vs. GTN Engineering (I) Ltd. - 2012 (281) ELT 185 (Mad.). The issue as to how the period of limitation has to be computed in the case of export of service has been settled by the decision in the case of mPortal India Wireless Solutions Pvt. Ltd. (supra) relied by the appellant in their appeal memorandum, wherein it is held that date of FIRCs has to be taken as the relevant date for computing the period of one year for filing the refund claim. Further, the Larger Bench of the Tribunal in the case of Commissioner of Central Excise, Bengaluru Vs. Span Infotech (India) Pvt. Ltd. reported in 2018 (12) GSTL 200 (Tri. LB) has also recently held that in the case of export of service, it is the date of receipt of FIRC which has to be taken as the relevant date and not the date of invoice.
7. From the above discussions as well as following the principle laid in the case of mPortal India Wireless Solutions Pvt. Ltd. (supra) and the larger Bench decision of the Tribunal 4 in the case of Span Infotech (India) Pvt. Ltd. (supra), I am of the view that the rejection of refund claim on the ground of limitation is unjustified. The impugned order is set aside and the appeal is allowed with consequential relief, if any.
(Dictated and pronounced in open court) (Sulekha Beevi C.S.) Member (Judicial) Rex