At, Customs Excise Service Tax Appellate Tribunal West Zonal Bench At Mumbai
By, THE HONORABLE JUSTICE: ASHOK K. ARYA
For Petitioner: Nikki Poddar, Chartered Accountant And For Respondents: M.P. Damle, Assistant Commissioner (AR)
1. The appellant is in appeal against Order-in-Appeal No. PUN-SVTAX-000-APP-166 to 171-16-17, dated 29-7-2016 whereunder part refund claim amounting to Rs. 33,93,671/- has been rejected. Both sides represented by learned Counsels, Ms. Nikki Poddar Chartered Accountant for the appellant and Shri M.P. Damle for the Revenue have been heard.
2. Learned DR for the Revenue vehemently pleads that as per provisions of Section 11B of Central Excise Act, 1944 the appellant has not filed the claim within one year and is not entitled to refund. On the other hand appellant pleads that time limit of one year is to be computed from the last day of the quarter, when the exports took place.
3. The issue involved is - 'whether the refund claim has been filed by the appellant, within time limit of one year as per provisions of Section 11B of the Central Excise Act, 1944 read with Rule 5 of CENVAT Credit Rules, 2004?'
4.1 From the facts of the case and submissions of both sides, it appears that computation of time limit of one year in this case, where the appellant can file the claim on quarterly basis only, is to be taken from the date of the end of the quarter, during which export of services took place, if it is so, the appellant has filed the claim within time limit of one year; which is the prescribed time limit in the law of Central Excise read with Rule 5 of CENVAT Credit Rules, 2004 and the Notification No. 27/2012-C.E.(N.T.) dated 18th June, 2012 as applicable to the appellant. This view is supported by the Tribunal's decision in the case of Commissioner of Central Excise, Pune-III v. Navistar International Pvt. Ltd : 2016-TIOL-1055-CESTAT-MUM. The Tribunal in said decision has observed as under:-
"5. I have carefully considered the submissions made by both the sides. The issue lies in the narrow compass. The amended, ride is applicable only for the exports taken place on or after 1st April, 2012. The Ld. Commissioner has deducted the value of 10 invoices from the export turnover as well as from the total turnover of quarter April, 2012 to June, 2012, for the reason that exports made before 1-4-2012 is governed by the un-amended Rule which shall not apply retrospectively on the export made prior to 1-4-2012. Therefore in my considered view the ld. Commissioner has rightly deducted the value of 10 invoices pertaining the period prior to 1-4-2012 from export turnover as well as total turnover for the period. April-June 2012. As regard, limitation, when in the Notification issued under Rule 5 it is a condition that the assesses has to file refund only once in a quarter. Accordingly, he is not allowed to file refund before quarter is completed, in that case, the relevant date for computing 1 year for the purpose of Section 11B shall be from 30-6-2012...
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......." In light of above discussion and the Tribunal's decision (supra), the appellant has filed the refund claim within time and would be entitled to the said refund claim. Consequently the impugned order is modified to above effect and appeal is allowed with consequential relief, if any, to the appellant.