COMMISSIONER OF SERVICE TAX Vs. RATIO PHARMA INDIA PVT. LTD.
LAWS(CE)-2015-3-47
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on March 17,2015

COMMISSIONER OF SERVICE TAX Appellant
VERSUS
Ratio Pharma India Pvt. Ltd. Respondents


Cited Judgements :-

C C , C EX & S T , HYDERABAD-IV VS. HYUNDAI MOTOR (I) ENGINEERING (P) LTD [LAWS(APH)-2016-7-80] [REFERRED TO]


JUDGEMENT

M.V.RAVINDRAN,MEMBER (J) - (1.)THIS matter was referred to the Larger Bench by Single Member Bench by an order dated 14 -11 -2014 [ : 2015 (38) S.T.R. 83 (Tri. -Mum.)] to have uniformity on the issue in view of the different judgments of the Tribunal. Following questions are referred: -
Whether the "relevant date" for deciding the limiting period of one year under Clause 6 of Appendix to Notification 5/2006 -C.E. (N.T.), dated 14 -3 -2006 for sanction of refund of Cenvat Credit under Rule 5 of Cenvat Credit Rules read with Notification No. , dated 14 -3 -2006 in the case where service is exported is -

(a) The date of export of service, or

(b) The date of export invoice, or

(c) The date of receipt of foreign exchange whether is part of full or advanced.

(d) The date when both activities have been completed i.e. service has been exported and foreign exchange has been received (as foreign exchange may be received in advance)

Heard both sides and perused the records.

(2.)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. - : 2015 (37) S.T.R. 321 and Business Process Outsourcing (I) Pvt. Ltd. - : 2014 (34) S.T.R. 364 (Tri. -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. -, 2014 (34) S.T.R. 437 (Tri. -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 Pvt. Ltd. (supra) and Business Process Outsourcing (I) Pvt. Ltd. (supra) were rendered by Single Member Bench while the judgment in the case of Bechtel India Pvt. 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. and 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. Registry is directed to place the matter before the Regular Bench for disposal of the appeal.
(Pronounced in open Court)

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