M/S.Divine Wellness (P) Ltd vs Cce & St- Kanpur

[Arising out of Order-in-Appeal No.48-ST/APPL/KNP/2013 dated 30.10.2013 passed by the Commissioner (Appeals), Customs, Central Excise & Service Tax, Kanpur]

For approval and signature:

HONBLE MR. S.K. MOHANTY, MEMBER (JUDICIAL)

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

M/s.Divine Wellness (P) Ltd. Appellant

Vs.

CCE & ST- Kanpur  Respondent

Present for the Appellant : Ms. Vishakha Choudhary, C.A. &

Mr. Mohd. Suhail, Advocate

Present for the Respondent: Shri Devender Singh, D.R.

Coram: HONBLE MR. S.K. MOHANTY, MEMBER (JUDICIAL)

Date of Hearing/Decision: 10.08.2015

Final ORDER NO. 54114/2015

PER: S.K. MOHANTY

This appeal is directed against the impugned order dated 30th October, 2013 passed by the Commissioner (Appeals), Central Excise & Service Tax, Kanpur, upholding rejection of refund claim by the adjudicating authority.

2. The brief facts of the case are that the appellant is engaged in providing personalized yoga classes and wellness consultations to its clients located both within India as well as outside India. The consultations include diet management, ayurveda consultation, weight loss and body toning etc. The appellant is registered under the category of health club and fitness centre service. Since the appellant exports the taxable service, on which there is no scope for utilization of cenvat credit, the appellant during the period 01.04. 2010 to 30.09.2010 had filed the refund claim in terms of Rule 5 of the Cenvat Credit Rules 2004 read with Notification No.5/2006-C.E. (N.E.) dated 14th March, 2006, claiming refund of all unutilized Cenvat Credit on the input services used in or in relation to providing the exported output service. The refund application was denied by the authorities below on the ground that the same is time barred having been filed beyond one year from the relevant date, in terms of Section 11B of the Central Excise Act, 1944.

5. The ld. Chartered Accountant, Ms.Vishakha Chaudhary appearing for the appellant submits that the Rule 5 governing refund of unaccumulated cenvat credit, no where specifies the time limit within which the refund claim has to be lodged. She submits that even if the time limit of one year is to be considered for filing the refund claim, in this case, the time limitation should be computed from the date of issuance of the bank realization certificate. She further submits that the filing of refund claim beyond the stipulated time frame is a procedural condition, for which the substantive right to refund cannot be denied. In this contest, the ld. Consultant has relied on the judgment of Honble Madhya Pradesh High Court in the case of STI India Ltd. vs. Commissioner of Cus. & C.Ex., Indore reported in 2010 (19) STR 614 (M.P.).

6. Per contra, Shri Devender Singh, the ld. JCDR appearing for the respondent submits that the Notification dated 14th March, 2006 issued under Rule 5 of the Cenvat Credit Rules clearly provides that the refund claim has to be lodged within one year from the relevant date. According to him, the date of export should be considered as relevant date. In this context, the ld. JCDR has relied on the decision of Honble Madras High Court in the case of Commissioner of Central Excise, Chennai-IV vs. M/s.Celebrity Designs India Pvt. Ltd. reported in 2015  TIOL  646 HC  MAD  CX and Commissioner of Central Excise, Coimbatore vs. GTN Engineering (I) Ltd. reported in 2012 (281) E.L.T. 185 (Mad.) and the judgment of Honble Andhra Pradesh High Court in the case of CCE, Hyderabad vs. M/s.Hyundai Motor India Engineering (P) Ltd. reported in 2015- TIOL- 739 HC-AP-ST.

7. I have heard the ld. Counsel for both sides and perused the records.

8. The short question involved in this appeal is as to whether the refund claim has to be filed within one year from the date of receipt of consideration, or from the date of rendition of service. I find from the available records that the export proceeds were realized through the approved Banking channel by the appellant during the period from 16.04.2010 to 07.12.2010 and the refund claim was filed on 19.12.2011, which is beyond the stipulated time prescribed in section 11B of the Central Excise Act read with the Notification dated 14th May, 2006 issued by the Central Government.Thus, I am of the view that there is no infirmity in the impugned order passed by the Commissioner (Appeals) in denying cenvat credit benefit to the appellant on the ground of limitation. The judgment of Honble

Madhya Pradesh High Court cited by the ld. Consultant for the appellant in the case of STI India Ltd. (Supra) is not applicable to the facts of the present case inasmuch as the said judgment has been departed by the Honble Madras High Court in the case of CCE, GTN Engineering (I) Ltd. (Supra) by observing the following:-

17.?The learned counsel would also rely upon a Judgment of Madhya Pradesh High Court at Indore reported in 2009 (236) E.L.T. 248 (M.P.) [STI India Ltd. v. Commissioner of Customs and Central Excise, Indore]. In that case, though the Court has held that Clause 6 of Appendix read with Section 11B of Central Excise Act, 1944, cannot be made applicable insofar as the period of limitation is concerned when a claim for CENVAT credit is made, a reading of the said provision shows that there is no reference to Rule 5. With great respect, we are not in agreement with the said judgment as the judgment was rendered based on the rules and the notification which are procedural in nature. As we have found that but for the provision of Rule 5 r/w notification, the respondent could not have filed the application for refund, he has to satisfy the limitation clause as provided under Section 11B of the Act.

9. I also find that the Honble Andhra Pradesh High Court in the case of M/s.Hyundai Motor India Engineering (P) Ltd. (Supra) have held that the relevant date for calculating the time limit for grant of refund would be the date of receipt of the consideration from the overseas service receiver.

10. In view of the settled position of law, I am of the considered view that the refund application filed by the appellant is clearly barred by limitation as provided under section 11B of the Central Excise Act read with Rule 5 of the Cenvat Credit Rules. Thus, there is no infirmity in the impugned order passed by the Commissioner (Appeals). The appeal filed by the appellant is dismissed.

(Dictated and pronounced in the open Court)

(S.K. MOHANTY)

MEMBER (JUDICIAL)

Anita

??

??

??

??

0 4 ST/50873/2014 EX. [SM]