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Conexant Systems Pvt. Ltd V/S CCE & ST, Hyderabad-IV

    Appeal No. ST/21733/2015 (Arising out of Order-in-Appeal No. HYD-EXCUS-004-APP-002-15-16-ST, dt. 27.04.2015 passed by Commissioner (Appeals), ST, Hyderabad)

    Decided On, 20 July 2017

    At, Customs Excise Service Tax Appellate Tribunal Regional Bench, Hyderabad

    By, MEMBER

    For Respondents: Guna Ranjan, Superintendent/AR

Judgment Text

1. This appeal is directed against Order in Appeal No. HYD-EXCUS-004-APP-002-15-16-ST, dt. 27.04.2015.

2. None appeared on behalf of the appellant despite notice nor there is any request for adjournment.

3. On perusal of records, it is noticed that the matter came up for disposal on 10.02.2017, 18.04.2017 and 02.05.2017 and on all these days, appellant sought for adjournment on one pretext or the other and the requests were accommodated by the Bench. Since, already three adjournments were granted, I take up the matter for disposal today in the absence of any representation from the appellant.

4. Heard submissions made by Ld. DR and perused the records.

5. The issue as explained by Ld. DR is regarding rejection of refund claim of Rs. 9,94,408/- on the ground that appellant had filed the application for refund claims of Cenvat credit beyond the period of one year from the date of export of services. It is his submission that both the lower authorities have applied the provisions of Section 11B for the relevant date for the purpose of verifying the refund claims which is from the date of export of services.

6. On careful consideration of the submissions made by Ld. DR, I find that the issue is regarding rejection of refund claim only on the ground that the relevant date as per provisions of Section 11 B needs to be applied. It is noticed that the appellant had sought refund claim under the provisions of Notification No. 27/2012-C.E (N.T) wherein it is mentioned that application needs to be filed for refund of the unutilised Cenvat credit within the time limit prescribed under the relevant provisions of the notifications. It is noticed that the entire issue is res integra inasmuch the interpretation of the lower authorities in this case is regarding the relevant date of filing of refund claim.

7. The Tribunal in the case of Hyundai Motor India Engineering Pvt. Ltd. Final Order No. 20881/2014 has observed that in the case of export of services, export is complete only when foreign exchange is received in India. Hence, in the case in hand, the relevant date should be from the date when the foreign exchange is received by the appellant, there is no dispute as to the relevant date is from when the payment of service exported has been received by appellant. The same view has been taken by the West Zonal Bench of this Tribunal in the case of Eaton Industries Pvt. Ltd. [2011(22)S.T.R. 223 (Tri.-Mumbai)], wherein it was held that the date of filing of refund claim in the case of export services is the date of payment received for such services rendered and not the date of provision of services. In the entire case, the Bench granted detailed order as to the explanation to Rule 5 and Export of Service Rules, 2015 etc.

8. Consequent to such decisions, the Central Board of Excise & Customs has also substituted the clauses in Notification No. 27/2012-CE (N.T) by Notification No. 14/2016-C.E (N.T), dated 01.03.2016 so as to read what would be the period of one year in respect of service provider, wherein it is mentioned that it will be from the date of receipt of payment in convertible foreign exchange and also the said notification contemplates as to receipt payment of service has been as an advance prior to the date of issue of the invoice. In the case in hand, it is noticed that appellant has been claiming before the lower authorities that they have not received any advance for services to be rendered and their refund claim for the period October 2012 to December 2012 is filed on 26.12.2013 i.e. within one year from the date of receipt of foreign exchange remittances and they had submitted the Bank Realisation Certificates alongwith copies of export invoices, SOFTEX Forms and Export clearance certificates. Both the lower authorities have not disputed this point. In view of the fact that there is no dispute

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as to that the refund claims have been filed within one year of receipt of foreign exchange remittances, the judicial discipline mandates that I should follow the views as resolved by various Benches (as cited herein above), accordingly in the case in hand and following the same ratio, I hold that the impugned orders are unsustainable. 9. Impugned orders are set aside and appeal is allowed with consequential reliefs, if any.