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2022 (4) TMI 1300 - CESTAT BANGALORERefund of CENVAT Credit - input services - Business Support Services - Health Insurance - Event Management Services - Rental Charges on accommodation provided to employees - Rent of cafeteria - out of pocket expenses incurred on Chartered Accountant Service - Management Business Consultant Service - denial on the ground of nexus can be discussed at the stage of refund, or not - power of the departmental officers to traverse beyond the directions in the remand order. Whether the issue of nexus cannot be discussed at the stage of refund? - Business Support Services - Health Insurance - Event Management Services - Rental Charges on accommodation provided to employees - rent of cafeteria was denied - out of pocket expenses incurred on Chartered Accountant Service - Management Business Consultant Service - denial on account of nexus - HELD THAT:- The appellants have a prima facie case in their favour inasmuch as the issue of nexus cannot be raised at the point of grant of refund. Nexus cannot be discussed and credit cannot be denied while deciding refund under Rule 5 of CENVAT Credit Rules - except for Health Insurance, the nexus of other services to the output services have been decided. Therefore, the appellants are eligible for the credit and consequential benefit of refund. Health Insurance Service - HELD THAT:- It is found that the Authorized Representative has submitted that w.e.f. 1st April, 2011, Health/ Medical Insurance has been specifically excluded from the definition of Input Service in CENVAT Credit Rules, 2004 and the same has been upheld in the cases of BHARAT FRITZ WERNER LTD. VERSUS COMMISSIONER OF CENTRAL TAX, BANGALORE NORTH WEST COMMISSIONERATE [2019 (6) TMI 67 - CESTAT BANGALORE]. Therefore, the credit of ₹ 2,38,404/- availed by the appellants is not admissible to them. Also, the appellants have wrongly availed CENVAT credit even when the invoices were not available with them. Learned Counsel for the appellants has fairly conceded that this credit of ₹ 4,65,712/- availed by them and claimed for refund is not admissible to them. Hence, the appellants are not entitle to the refund of ₹ 4,65,712/-. Also, the appellants have availed CENVAT credit of ₹ 11,354/- on the strength of invoices which are not addressed to the company. During the course of argument, learned Counsel for the appellants submits that the refund of this amount was not granted on the ground that the invoice was not on the name of the registered premises of the company but was in the name of the company. However, no evidence to this effect has been produced by the learned Counsel. Hence, this credit is also not admissible to the appellants. The appellants have also submitted that a refund of ₹ 200/- was denied on no specific grounds and there appear to be a calculation error. In the result, I hold that refund of a total of ₹ 7,15,470/- (₹ 2,38,404 + ₹ 4,65,712+₹ 11354) is not admissible to the appellants. Refund of CENVAT credit in terms of N/N.27/2012 - HELD THAT:- The appellants have relied upon the cases of COMMR. OF C. EX., MYSORE VERSUS CHAMUNDI TEXTILES (SILK MILLS) LTD. [2010 (4) TMI 450 - CESTAT, BANGALORE], FINE CARE BIO-SYSTEMS VERSUS COMMISSIONER OF C. EX., AHMEDABAD [2010 (6) TMI 231 - CESTAT, AHMEDABAD], AMDOCS BUSINESS SERVICES PVT. LTD. VERSUS COMMISSIONER OF C. EX., PUNE [2013 (9) TMI 31 - CESTAT MUMBAI]. However, it is found that the impugned case is factually different from the above cases - In the above cases, the refunds under question were under Notification No.05/2006 whereas the refund in the impugned case is as per Notification No.27/2012. The appellant claimed that initially, they have filed refund claim under Notification No.5/2006 however on the insistence of the Department they have filed the same under Notification No.27/2012. Scope of remand order - HELD THAT:- In the facts of the present case, it is found that in the second round of litigation, the original authority has traversed beyond the scope of the remand order, which they are not entitled to - the original authority could not have decided the other way as no appeal was filed against the said OIA No.36–40/2017 dated 13.01.2017 by the Department - there is force in the argument of the appellants. To this extent, the impugned orders are not sustainable as both the OIAs in the first round attained finality as the Department has not appealed against the same. It is not free for the original authority to traverse beyond the remand order and to reject the refunds. It is not correct on the part of the appellate authority such blatantly wrong and perverse orders. Without going into the merits, the appellants succeed on this count alone. Accordingly, the appellants are eligible for refund on this count. Appeal allowed in part.
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