The main legal point established in the judgment is the interpretation of the term 'substitution' in the context of statutory amendments, and its retrospective or prospective application.

ORDER :

Prayer in W.P. No. 5941 of 2018: Writ Petition filed under Article 226 of Constitution of India, praying to issue a writ of Certiorari, to call for the records in the proceedings of the respondent in Order in Original No. 115/2017 (R) dated 08.11.2017 in C. No. IV/16/130/2017/R&R/LC1, issued by the respondent and quash the same as arbitrary and illegal.

W.P. No. 6018 of 2018: Writ Petition filed under Article 226 of Constitution of India, praying to issue a writ of Certiorari, to call for the records in the proceedings of the respondent in Order in Original No. 177/2017(R) dated 19.12.2017 in C. No. IV/16/227/R&R/LC1, issued by the respondent and quash the same as arbitrary and illegal.

1. The Writ Petitions are heard through Video Conferencing on 22.07.2020. With the consent of Mr. Joseph Prabakar, learned counsel for the petitioner and Mr. Rajnish Pathyil, learned Standing counsel appearing on behalf of the respondent, the cases are taken up for final disposal.

2. The petitioner in both these Writ Petitions, is an Export Oriented Unit, registered with the respondent for providing “Information Technology Software Service” for the period from January 2016 to March 2016 and October 2015 to December 2015. They filed refund claim for Rs. 6,93,657/- and Rs. 6,31,884/- on 28.03.2017 and 27.12.2016 respectively, being the Input Service Tax Credit taken, under Rule 5 of the CENVAT Credit Rules 2004 r/w Notification No. 27/2012-CE (NT) dated 18.06.2012. The respondent herein through separate impugned orders dated 18.11.2017 and 19.12.2017 objected the claim contending that the refund claim is to be filed within a period of one year from the relevant date and the relevant date would be the date of receipt of payment in convertible foreign exchange with regard to the export made during the relevant period, for which the refund application is made. Aggrieved against both the rejection orders, the present Writ Petitions are filed.

3. Section 11(B) of the Central Excise Act 1944 r/w Clause 3(b) of Notification No. 27/12-CE (NT) dated 18.06.2012 enable a person for refund of any duty of excise and interest, by making an application with the authority before the expiry of one year from the relevant date. Through a Notification No. 14/2016-CE (NT) dated 01.03.2016, Clause 3(b) of Notification No. 27/12-CE (NT) dated 18.06.2012 came to be substituted, whereby the term ‘relevant date’ in the case of service provider was clarified to be after one year from the date of:-

(a) Receipt of payment in convertible foreign exchange where provision of service have been completed.

(b) Issue of notice where payment for the service had been received prior to the date of issue of the invoice.

Thus, as per the substitution made to clause 3(b), the relevant date would be one year from the date of receipt of payment in convertible foreign exchange. Since the respondent has found that the date of receipt of payment in convertible foreign exchange with regard to the exports made during the period was after the one year period referred above, both the applications were held to be time barred and thus rejected.

4. It is the contention of the learned counsel for the petitioner that since the new condition of reckoning the relevant date in Para B of the Notification No. 27/12 dated 18.06.2012 came into effect through Notification No. 14/2016 dated 01.03.2016, the amendment would only apply to the refund claims for the subsequent quarters and not for the earlier quarters. In support of his contentions, the learned counsel for the petitioner relied upon the decision of the Hon’ble Division Bench reported in the case of Tarajyot Polymers Ltd. vs. Union of India, 2018 (359) ELT 678 (Mad.) and Sodexo Food Solutions India Pvt. Ltd. vs. State of Tamil Nadu, 2019 VIL (207) Mad.

5. The learned Standing Counsel for the respondent, on the other hand, would submit that the clarification Notification No. 14/2016 dated 01.03.2016 is only a substitution of the earlier Notification No