Home Case Index All Cases Service Tax Service Tax + AT Service Tax - 2023 (5) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (5) TMI 865 - AT - Service TaxRejection of Refund claim - denial of refund without issuing a notice under Rule 14 of the Cenvat Credit Rules - export of output services without payment of service tax during the period from January 2016 to March 2016 - HELD THAT:- The issue involved in the present case in respect of denial without issuing a notice under Rule 14 of the Cenvat Credit Rules is no longer res integra and has been decided in the decisions referred to by the learned counsel in the case of M/S BNP PARIBAS INDIA SOLUTION PVT LTD VERSUS COMMISSIONER OF CGST, MUMBAI EAST [2021 (12) TMI 676 - CESTAT MUMBAI] wherein the Tribunal has held that It is well settled legal position that denial of Cenvat Credit can be done only by issuing notice under Rule 14 ibid. Having allowed the Cenvat Credit or by not denying the same, the department cannot reject refund of Cenvat Credit under Rule 5. It is well settled principle that availment of Cenvat Credit, its utilisation and refund are different aspects dealt with under CCR, 2004. Rule 5 provides for any refund of Cenvat Credit and nowhere in this Rule there is a provision to determine the correctness about the availment of Cenvat Credit. Its only Rule 14 ibid which provides for recovery of irregularly availed Cenvat Credit. Thus modifying the refund claim to the extent of Rs.29,53,467/- by the lower authorities cannot be upheld. In respect of amount of Rs.3,09,347/-, appellant agrees that the refund claim is not admissible to them - there are force in the submissions made by the appellant that this amount which is not allowed as a refund should be allowed to be taken as credit as Cenvat account - this amount should be credited back in the Cenvat account if possible. Appellant has claimed cash refund of the said amount by quoting Section 142(6)(a) of the CGST Act. In my view, it is for the appellant to deal such a claim before the concerned authorities and seek a proper order from them under CGST Act. This Tribunal is not a competent authority to decide on the admissibility of cash refund as per the CGST Act. Appeal allowed.
|