ST - It is a settled law that reference to LB is made only in situation when there is a contrary view expressed by two different Benches on given issue - in absence of any contrary view expressed by any other Division Bench no reference lies to Larger Bench: CESTAT LB
By TIOL News Service
MUMBAI, APR 10, 2015: THIS case involves a Revenue appeal.
The respondents are a 100% EOU providing 'Scientific and Technical Consultancy Service'. The entire services are exported. They filed refund claim on 15.4.2009 under the provisions of Rule 5 of CCR, 2004 r/w Notf. 5/2006-CE(NT).
Since the lower authorities allowed the refund Revenue is before the CESTAT contending that as per Explanation B(a) to Section 11B, the limiting period of one year for sanction of refund is to be taken from the date of shipment of the goods which are exported. Whereas the interpretation of the lower authority is that the period of one year would start from the quarter of the month to which the refund claim pertains as the refund claims under Notification No. 5/2006-CE(NT) are to be submitted not more than once for any quarter in a calendar year. According to Commissioner (Appeals), the refund is for credit accumulated and not for the duty paid on the services exported and, therefore, the claim filed is outside the purview of Section 11B of the CEA, 1944.
Before the CESTAT, Single Member Bench , the AR submittedthat the date of actual supply of export of service should be taken as the relevant date u/s 11B as held by the CESTAT in the case of M/s. Affinity Express India Pvt. - 2014-TIOL-1035-CESTAT-MUM and in case of GTN Engineering (I) Ltd. - 2012-TIOL-369-HC-MAD-CX .
The respondent submitted that since “services” are exported, the relevant date for limitation given in Section 11B will be date when invoices were raised or the date of payment will be date of export of service. It was further informed that the refund claim was filed with the department on 15.4.2009 and the export invoices were raised on 21.4.2008, 30.4.2008, 19.5.2008, 30.5.2008, 3.6.2008, 6.6.2008, 10.06.2008, 27.6.2008 and 30.06.2008; the payment of service was received thereafter and, therefore, the refund has been filed within the time limit of one year under the provisions of Section11B. Moreover, the time limit stipulated u/s 11B is not applicable in cases of refund claim made under Rule 5 of the CCR.
The Member (T) extracted clause 6 of the Appendix to the notification No. 5/2006-CE(NT), the definition of 'relevant date' as appearing in s.11B of CEA, 1944 and observed that in view of s. 83 of FA, 1994 just as the relevant date in Central Excise is the date of export of goods, the relevant date in the present case would be the date on which the services are exported. Inasmuch as the respondent would be eligible for refund in respect of all invoices except two invoices, dt. 27/06/2008 and dt.30/06/2008 under which the services were provided in 2007 but billed in June 2008 and for which refund is claimed on 15.4.2009. He held accordingly .
Thereafter, the Member (T) observed that on similar matter, there were differing judgments -
++ Affinity Express India Pvt. Ltd. ( 2014-TIOL-1035-CESTAT-MUM ) - relevant date for determining the period of limitation will the date of export of services or the date when the invoices are raised.
++ Business process Outsourcing (I) Pvt. Ltd. - 2014-TIOL-2384-CESTAT-BANG - relevant date should be the date on which consideration is received, whether it is part or full or advanced.
++ Bechtel India Pvt. Ltd. - 2013-TIOL-1977-CESTAT-DEL - relevant date is the date of receipt of foreign exchange.
The Member (T), therefore, opined that the matter should be referred to Larger Bench. Accordingly, the question was referred to the President for consideration by a Larger Bench.
We reported this order as 2014-TIOL-2397-CESTAT-MUM.
The Larger Bench constitued by the President recently heard the matter.
The Member (J) writing for the Larger Bench observed –
"4. On perusal of the records, it transpires that the question which is referred to the Larger Bench by Single Member Bench noting there was different views on the issue i.e Affinity Express India Pvt. Ltd. – 2014-TIOL-1035-CESTAT-MUM and Business Process Outsourcing (I) Pvt. Ltd. – 2014-TIOL-2384-CESTAT-BANG holding a view that the relevant date for determining the period of limitation will be the date of export of services from the date when the invoices are raised and the date on which consideration is received whether it is in part or full or advanced while in the case of Bechtel India Pvt. Ltd. – 2013-TIOL-1977-CESTAT-DEL it was held that the relevant date for refund is the date of receipt of foreign exchange. It is also to be noted that the decision of this Tribunal in the case of Affinity Express India Ltd. (supra) and Business Process Outsourcing (I) Pvt. Ltd. (supra) were rendered by a Single Member Bench while the judgement in the case of Bechtel India Ltd. (supra) has been rendered by a Division Bench. It is a settled law that reference to the Larger Bench is made only in a situation when there is a contrary view expressed by two different Benches on a given issue. In this case, we find that the view expressed in the case of Bechtel India Pvt. Ltd. (supra) by a Division Bench and no contrary view has been brought to our notice. It is to be also noted that in the decision in the case of Business Process Outsourcing (I) Pvt. Ltd. (supra) and Affinity Express India Pvt. Ltd. (supra) the Division Bench decision of Bechtel India Pvt. Ltd. was not cited. Be that as it may, in the absence of any contrary view expressed by any other Division Bench no reference lies to the Larger Bench. In our considered view, as no reference lies to the Larger Bench hence, the reference needs to be returned and is returned."
The Registry was directed to place the matter before the Regular Bench for disposal of the appeal.
In passing : Incidentally, the Single Member (T) who made the reference to the Larger Bench was also a member of the Larger Bench.
Please also read Larger Benches of Tribunal in New Avatar
(See 2015-TIOL-645-CESTAT-MUM-LB)
