Custom, Excise & Service Tax Tribunal
M/S. Bechtel India Pvt. Ltd vs Cce, Delhi on 17 July, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
West Block No. 2, R.K. Puram, New Delhi 110 066.
Date of Hearing : 26.06.2013
Date of Pronouncement :17/07/2013
ST/45-48/2009
[Arising out of Order-in-Appeal No. 34 to 37/ST/DLH/2008 dated 03.09.2008 passed by the Commissioner (Appeals), Central Excise, Delhi]
For Approval & Signature:
Honble Mr. Justice G. Raghuram, President
Honble Mr. Sahab Singh, 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 would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
Yes
3.
Whether their Whether their Lordships wish to see the fair copy of the order?
Seen
4.
Whether order is to be circulated to the Department Authorities?
Yes
M/s. Bechtel India Pvt. Ltd. Appellant
Vs.
CCE, Delhi Respondent
Appearance:
Ms. MekhlaAnand&Abhilasha Singh, Advocate - for the Appellant Shri M.S. Negi, DR - for the Respondent Coram : Honble Mr. Justice G. Raghuram, President Honble Mr. Sahab Singh, Member (Technical) FINAL ORDER NO. 56983-56986/2013 Per Sahab Singh :
These are four appeals filed by M/s Bechtel India Pvt. Ltd. (hereinafter referred to as appellants) against the common Order in Appeal No. 34 to 37/ST/DLH/2008 dated 03.09.2008 passed by Commissioner Central Excise (Appeal) Delhi.
2. Brief facts of the case are that appellants are provider of Consulting Engineers Service and they are exporting majority of services under provisions of Export of Service Rules, 2005. They filed four refund claims for the period July 2005 to September 2005, October 2005, November 2005 and December 2005 on 29.09.2006, 31.10.2006, 30.11.2006 and 29.12.2006 respectively under Rules 5 of the Cenvat Credit Rules read with notification No. 5/2006 dated 14.03.2006. These claim were rejected by the original adjudicated authorityon the ground of time bar as claim were filed beyond period of 1 year as stipulated under Section 11B of the Act and also on the ground that Rules 5 was applicable only to manufactures and only with effect from 14.03.2006 service provides become entitled for refund as appellant claims were pertaining to period July 2005 to December 2005, they are not entitled for refund. Original authority has also observed that there is no need to examine whether assessee have fulfilled the requirements of Notification 5/2006 dated 14.03.2006. Appellants challenged the Orders in Original before Commissioner (Appeal), who held that appellants would have been entitled to refund of unutilized credit even prior to date of amendment i.e. 14.03.2006 but he rejected their claim on ground of time bar under Section 11B of Central Excise taking relevant date as date of export of service. Appellants have field these appeals against the impugned order.
3. Heard Ms.Mekhla Anand Ld. Advocate and Shri M.S. Negi at length.
4. Issue involved in these appealsis whether claims filed by the appellants are time barred as held by lower authoritiesor in time as claimed by the appellants.
5. These claims have been filed under Rule 5 of the Cenvat Credit Rules which reads as under:-
Rule 5. Refund of Cenvat Credit.- Where any input or input service is used in the final products which is cleared for export under bond or letter of undertaking, as the case may be, or used in the intermediate products cleared for export, or used in providing output service which is exported, the Cenvat credit in respect of the input or input service so used shall be allowed to be utilized by the manufacturer or provider of output service towards payment of,
(i) Duty of excise on any final products cleared for home consumption or for export on payment of duty; or
(ii) Service tax on output service, and where for any reason such adjustment is not possible, the manufacturer shall be allowed refund of such amount subject to such safeguards, conditions and limitations, as may be specified, by the Central Government, by notification.
[Explanation.- For the purposes of this, rule, the words output service which is exported means the output taxable services exported in accordance with the Export of Services Rules, 2005] Condition, safeguards and limitation have been prescribed under Notification 5/2006 dated 14.03.2006 Relevant extract of which are reproduced below:-
In exercise of the powers conferred by rule 5 of theCenvat Credit Rules, 2004 (hereinafter referred to as the said rules) and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue), No. 11/2002-Central Excise (N.T.) dated 1st March, 2002, published in the Gazette of India Extraordinary, vide number G.S.R. 150 (E), dated 1st March, 2002, the Central Government hereby directs that refund of Cenvat Credit shall be allowed in respect of:
(a) Input of input service used in the manufacture of final product which is cleared for export under bond or letter of undertaking
(b) Input or input service used in providing output service which has been exported without payment of service tax, subject to safeguards, conditions and limitations, set out in the Appendix to this notification
1. The final product or the output service is exported in accordance with the procedure laid down in the Central Excise Rules, 2002, or the Export of Service Rules, 2005, as the case may be.
2. .
3. .
4. ..
5. .
6. The application in Form A, along with the prescribed enclosures and the relevant extracts of the records maintained under the Central Excise Rules, 2002, Cenvat Credit Rules, 2004 or the Service Tax Rules, 1994, in original, are filed with the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, before the expiry of the period specified in section 11B of the Central Excise Act, 1994.
As per condition 1, output service is to be exported as per Export of Service Rule 2005.
Rule 3 of the Export of Service Rules 2005 is reproduced below:-
Rule 3 Export of taxable service. The export of taxable service means.
(1).
(2)..
(3) in relation to taxable services, other than,
(i) the taxable services specified in sub-clauses (a),(f),(h),(i),(j),(l),(m),(n),(o),(p),(q),(s)(t),(u),(v),(w),(x),(y),|(z),(zb),(zc),(zi),(zj),(zn),(zo),(zq),(zr),(zt),(zu),(zv),(zw),(zza),(zzc),(zzd),(zzf),(zzg),(zzh),(zzi),(zzj(,(zzl),(zzm),(zzn),(zzo),(zzp),(zzq),(zzs),(zzt),(zzv),(zzw),(zzx),[(zzy),(zzza),(zzzb),(zzzd),(zzze),(zzzf) and (zzzh),]; and
(ii) the taxable service specified in sub-clause [(d), and(zzzc)] as are provided in relation to an immoveable property, of clause (105) of section 65 of the Act,-
(i)such taxable services which are provided and used in or in relation to commerce or industry and the recipient of such services is located outside India:
Provided that if such recipient has any commercial or industrial establishment or any office relating thereto in India, such taxable services provided shall be treated as export of services only if-
(a) order for provision of such service is made by the recipient of such service from any of his commercial or industrial establishment or any office located outside India;
(b) service so ordered is delivered outside India and used in business outside India; and
(c) payment for such service provided is received by the service provider in convertible foreign exchange;
(iii) Such taxable services which are provided and used, other than in or in relation to commerce or industry, if the recipient of the taxable service is located outside India at the time when such services are received.
Similarly relevant date as defined under Section 11B of Central Excise Act, is as under:
Section 11B (5) (B) relevant date means,-
Explanation:-
(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 dispatch of goods by the Post Office concerned to a place outside India.
(b) .
(c) ..
(d)
(e) (ea) .
(eb) (ec) ..
(f) in any other case, the date of payment of duty.
7. On going through above provisions for claiming refund under Rule 5 of the Cenvat Credit Rule 2004, output service is required to be exported in accordance with procedure laid down Export of Service Rule 2005 (as per condition 1 of the Appendixt to Notification 5/2006). Once service is exported refund claim can be filed subject to limitation as prescribed under Section 11B of the Act. In the instant case export of service is complete only when foreign exchange is received in India as per Export of service Rule 2005 (i). In the Section 11B, relevant date for refund of export of goods is date of export. Section 11B is made applicable for claiming refund under Rule 5 of the Cenvat Credit Rules as per condition 6 of Notification 5/2006. In case of export of Services, export is complete only whenforeign exchange is received in India. Therefore relevant date of export of services is date of receipt of foreign exchange. In the present case all the four claims have been filed with 1 year from the date of receipt of foreign exchange and are therefore filed in time and can not be held as time barred.
8. Appeal is allowed in above terms.
(Pronounced in the court on 17/07/2013) (Justice G. Raghuram) President (Sahab Singh) Member (Technical) Neha 4