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File No.APPL-COMMOST/1196/2019-GST - APL-CHD

_l~''(,; OFFICE OF THE COMMISSIONER (APPEALS), cWtY'-14 3lP.{W (~), CENTRAL GOODS & SERVICES TAX (APPEALS) COMMISSIONERA TE, CHANDIGARH, lll"'rl" q WIT Cfi"{, 311 g'ffi 1 '-14, ~ C, R. BUILDING, PLOT NO. 19, SECTOR 17- C, CHANDIGARH, ~'qq.f,~~19,~17-~,~

~ ~ PH. 0172-2720240. "tJlcil'1-.0172-2720240.

C No 28/A1/ST/APPLICHD/2018~ t3g ~ ~~ ~ J. II .• _,.~,., :J_ ~ Appeal No. 28/2018-19 ( ..

ORDER-IN-APPEAL

Order-In-Appeal No. : CHD-EXCUS-001-APpJ ~ r -19-20

Dated:

Appellants MIs AAA Advantage Services, SCO 124-125, Second Floor, Sector 34-A, Chandigarh.

Order-in-Original & date 36/AC/R/GST/DIVN-111/2018 dated 07.06.2018. Adjudicating Authority Assistant Commissioner, Central Goods &

Service Tax Division-III, Chandigarh. Amount of Refund rejected 20,518/- Period of Dispute 01.04.2012 to 31.03.2013.

Mis AAA Advantage Services, SCO 124-125, 2nd Floor Sector 34-A, Chandigarh (for brevity 'the Appellants'), have filed the subject appeal against the Order-in-Original No. 36/AC/R/ST/DIVN-111/2018 dated 07.06.2018 (for brevity 'the impugned order') passed by Assistant Commissioner, Central goods & Service Tax Chandigarh (for brevity 'the adjudicating authority').

g- ~J.3i~~~. I~fly state,d th~t the Appellants were registered with the dep~rtment. v~de ff>/ S~~ ce,,:"cit~x Registration No. AAOFA5208NSD001 and engaged In providing ~! Infory1atio'l Technology Software service and exporting the services for which they '~9< . ere ma.Yaihng credit on various input services such as internet broadband,

: r5r.efess:!9n'aI Charge and Renting of Immovable property services. That the '-~~IIBhts had filed online refund claim amounting to Rs. 1,34,242/- on 07.10.2013 (without any supporting documents) of unutilized credit of service tax being the amount of ' service tax paid on input services used in providing services exported by them, for the period 01.04.2012 to 31.03.2013 under Rule 5 of the Cenvat Credit Rules, 2004 in terms of Notification No. 27/2012-CE (NT) dated 18.06.2012, however the refund claim with supporting documents was filed on 20.12.2013. That vide the refund Order No, 48/AC/ST/R/Chd/14/1914 dated 14-07-2014 an amount of Rs. 98,319/- only was sanctioned out of the total amount of refund of Rs. 1,34,242/­ and rejected the remaining amount of Rs. 35,923/- as time barred under Section 11 B of the Central Excise Act, 1944 as made applicable in service tax matters vide

File NO.APPL-COMMOST/1196/2019-GST - APL-CHD

Section 83 of the Finance Act, 1994 (here-in-after referred to as 'the Act') as the same pertained to the period beyond one year.

3. An appeal against the refund Order No. 48/AC/ST/R/Chd/14/1914 dated 14- 07-2014 was preferred before the Commissioner(Appeals) for allowing refund claim amounting to Rs. 25,894/- out of the total rejected amount of Rs. 35,923/-. The Commissioner Appeals (Chandigarh) vide Order No. CHD-EXCUS-001-APP-61-17- 18 dated 31.05.2017 has held that "Their refund claim application can rightly be considered properly filed only on 20.12.2013 i.e. the date on which they submitted the supporting documents required for the purpose." Further, it has been held that "the refund claim is not hit by the time-bar limitation for the period upto 20.12.2013 and the appellants are entitled to the benefit of this period."

4. The appellants vide letter dated 04.01.2018 forwarded the above said Order­ in-appeal dated 31.05.2017 and submitted a revised refund claim amounting to of Rs. 22,062/- {out of the earlier relief of Rs. 25,894/- filed before the commissioner(Appeals)} for consequential relief in the light of the Order-in- appeal dated 31.05.2017.

5. The adjudicating authority vide the impugned order sanctioned Rs. 1544/­ (out of the total claimed amount of Rs. 22,062/-) in respect of only one invoice dated 20.12.2012 and rejected the rest of the claim amounting to Rs. 20,518/-.

6. Being aggrieved, the appellants filed the present appeal against the impugned order on the grounds which are summarized as under:

6.1 That the refund of Rs. 20,518/- denied by adjudicating authority being time barred as the amendment in Notification No. 27/2012-CE(NT) dated 18.06.2012 had been carried out by notification no. 14/2016-Central Excise (N.T.) dated 01.03.2016 and had become effective from 01-03-2016. That the definition of 'Relevant date' under Section 11 B deals only with export of goods by different modes but does not mention anything in regards to export of services or to a service provider.

6.2 That correlating Rule 5 Cenvat Credit Rules, Rule 3(2) of Export of Service Rules 2005 and the proviso (e) of Rule 6A of Service Tax Rules relating to Export of

-e ices wherein it is specified that the service provided or agreed to be provided ",~~tl~] treated as export of services when the payment for such services has been

,t~l}~(e-celv~~~ RY the provider of service in convertible foreign exchange hence the ~ !:;' 'felevar)J~~.ate' for the purpose of Section 11 B of Central Excise Act, 1964 in case of ~.::~ T-ie~.p~rt i>fJervices should be the date of receipt of payment in convertible foreign ~ ~j ;. ~.x~,~angerfor the services provided. They have relied upon the following judgments:

_ -</ (i) _- Bechtel India Private Limited v. Commissioner of Service Tax, 2013 (7)

TMI490 - CESTAT NEW DELHI,

(ii) Commissioner of Central Excise, Pune I Vs Eaton Industries P. Ltd.2010 (12) TM171,

(iii) TACOFAURECIA DESIGN CENTER PVT LTD Vs. Commissioner of Central Excise, Pune -11/ 2014 (4) TM1688,

File No.APPL-COMMOST/1196/2019-GST - APL-CHD

(iv) Infosys Technologies Ltd. Vs. Commissioner of Service Tax, Bangalore [2016 (67) taxmann.com 313-CESTAT BAN GALORE]

6.3 That the adjudicating authority has disallowed the refund claim of Rs. 20,518/- on grounds that the amendment in Notification No. 27/2012-CE(N.T.) dated 18.06.2012 has been carried out by Notification No. 14/2016-Central Excise (N.T.) dated 01.03.2016 and has become effective only from 01-03-2016 and does not grant any retrospective benefit, that however, the amendment notification no. 14/2016-Central Excise (N.T.) dated 01.03.2016 is only clarificatory in nature though has not specifically granted any retrospective benefit; that in fact before 01-03-2016 legislature did not specifically provide for the period before which a service provider needed to file a claim for refund of unutilized credit on account of export of services and that the amendment has been carried out to fill the void and to give effect to judicial pronouncements by various Hon'ble Tribunals.

6.4 That in given case, the payment for export of services provided by the appellants during the period Aug 2012 to Jan 2013 was received in month of Dec 2012 & Mar 2013 in convertible foreign exchange and hence in view of the foregoing submissions the export of service was deemed to be completed in Dec 2012 & Mar 2013, respectively. That the instant refund claim of Rs 20,518/- filed by the appellants for unutilized credit of service tax on 20-Dec-2013 is very well within the time period of one year from the relevant date (i.e. Dec 2012 & Mar 2013), hence is well within the limitation time period of one year. 7. Personal hearing in the case was granted to the appellants on 25.04.2019. Sh. Deepak Gupta, CA and authorized representative on behalf of the appellants appeared for personal hearing, reiterated the submissions as made in their grounds of appeal dated 03.08.2018 and 19.09.2018 and requested to decide the case in the light of these.

~ I have carefully gone through the case records, grounds of appeal, documents '\2~~;.:I3..I,,,, on record as well as submissions made at the time of personal hearing and I t.~l (obse!r.;. that the refund claim dealt vide the impugned order was filed consequent to

(!j 0 ~ the Org r-in-appeal dated 31.05.2017 and the only issue to be decided is whether the "I=-: u, <Ti'-< rS'fynd r~jected vide the impugned order was in consonance with the findings of the ":.< Commissioner (Appeals) given in order-in-appeal No. Order No. CHD-EXCUS-001-

iJ APP-61-17-18 dated 31.05.2017.

7.2 I observe that as held in the order-in-appeal the actual date on which the appellants filed the refund was 20.12.2013 i.e. the refund claim in respect of the period prior to 20.12.2012 was hit by time limitation and the refund claim pertaining to the period after 20.12.2012 was within time period. Therefore, I hold that the refund claim in respect of the invoices listed at S. No. 10, 11 and 12 of the table given in para 7 of the impugned order is admissible to the appellants. The adjudicating authority has sanctioned refund amounting to Rs. 1544/- in respect of the invoice at serial no. 10, only. Therefore, refund in respect of S. No. 11 and 12 amounting to Rs. 3,486/- (Rs. 396/- + Rs. 3090/-) is also admissible.

Order

File No.APPL-COMMOST/1196/2019-GST - APL-CHD

8. In wake of the above, I partially allow the appeal filed by the appellants to the extent of Rs. 3,486/-. The impugned order stands modified and the appeal disposed of, accordingly.

Dr. Sum~l 16 ~,'r Commissioner(Appeals)

Digitally signed by SUMAN BALA Date:Tue Oct 01 1 :48:03 1ST 2019 Reason :Approve

REGD.A.D.

MIs AAA Advantage Services, SCO 124-125, 2nd Floor,Sector 34-A, Chandigarh

COpy to:

i. ii. iii. iv.

The Chief Commissioner, Goods and Service Tax Zone, Chandigarh. The Commissioner, Central Excise Commissionerate, Chandigarh. The Deputy Commissioner, Central Excise Division-III, Chandigarh. Guard File.

Superintendent (Appeals)

r • File NO.APPL-COMMOST/1196/2019-GST - APL-CHD •