TMI Blog2016 (3) TMI 1148X X X X Extracts X X X X X X X X Extracts X X X X ..... ection of refund claim of input service credit was that, there is no prescribed procedure for filing the refund claim during the relevant period - Held that: - the substantive benefit under Rule 5 of the Cenvat Credit Rules, 2004 cannot be denied to the appellant in the absence of the procedure prescribed for filing the refund claim. CENVAT credit - CHA and Courier Service - denial on the ground that they are availed beyond the place of removal of the goods - Held that: - the appellant is entitled to avail Cenvat credit on input service credit namely CHA and Courier Services which have been availed by the appellant in the course of their business to export of goods, further, I find that in the case of ABB Ltd.[2011 (3) TMI 248 - KARNATAKA HIGH COURT], it was held by the Hon’ble High Court of Karnataka that for the period prior to 1-4-2008, the assessee entitled to avail Cenvat credit on the service tax paid on the services beyond the place of the removal of goods. Appeal allowed - decided in favor of appellant. - E/2621-2622/2008-SM - Final Order Nos. 271-272/2016-CHD - Dated:- 31-3-2016 - Shri Ashok Jindal, Member (J) Ms. Krati Somani, Advocate, for the Appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the light of the decision of this Tribunal in the case of Fibres Fabrics International P. Ltd. - 2009 (14) S.T.R. 809 (Tri.-Bang.). It is also contended that the refund claims pertains to the period prior to 1-4-2008, therefore, any services availed by the assessee beyond the place of removal of goods is entitled for input service credit in the light of the decision of Hon ble High Court of Karnataka in the case of ABB Limited - 2011 (23) S.T.R. 97 (Karnataka). It is also submitted by the ld. counsel that in the case of export, any service availed up to the port of export is called inputs service in the light of the decision of this Tribunal in the case of Premier Conveyors P. Ltd. - 2015 (38) S.T.R. 171 (Tri. - Mum.). Therefore, it is prayed that impugned orders are to be set aside and the appeals are allowed with consequential relief. 4. On the other hand, the ld. AR reiterated the finding in the impugned order and submits that the appellant is claiming drawback on the export goods therefore, they are not entitled to refund claim of input service credit. 5. Heard the parties and considered the submissions. 6. I have gone through the provisions of Rule 5 of the Cenva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al in the case of Sabare International (supra), wherein this Tribunal has observed as under : Para 5 : Commissioner (Appeals) observed that the appellant has availed drawback and they have not followed the prescribed procedure and have not renewed the LUT and therefore, it is hit by the First Proviso to Rule 5 of the Cenvat Credit Rules, 2004. On a plain reading of the words in respect of such duty in the First proviso to Rule 5 make it clear that no refund of such credit shall be allowed in respect of such duty, if the manufacturer or provider of output service avails drawback allowed under Customs and Central Excise Duties Drawback Rules, 1995. In the present case, the appellant filed the refund of credit in respect of input service credit, it is contended by the learned AR on behalf of Revenue that there is no evidence available that the drawback claim would not be included with the input service credit. The word drawback defined under Rule 2(a) of Customs and Central Excise Duties Drawback Rules, 1995, as it stood during the relevant period as drawback in relation to any goods manufactured in India and exported, means a rebate of duty chargeable on any imported material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Customs and Central Excise Duties Drawback Rules, 1995 or claims a rebate of duty under the Central Excise Rules, 2002, in respect of such duty. 8.1 Even though the rule allows it, at that time relevant Notification was 11/2002. It did not provide the refund. The said notification is actually (i) prescribing safeguards and limitations issued under erstwhile Rule 5 of Cenvat Credit Rules, 2002. But, that notification was superseded by another Notification 5/2006, dated 14-3-2006 providing refund of input credit also, which has been not utilized. 9. On a very careful consideration of the matter, in the present appeals, all the refund claim pertains to period prior to 14-3-2006. However, as on 10-9-2004 itself, we have already given the reproduction of Rule 5, the rule itself provides the utilisation of the input credit and input service credit and where such input service credit or input credit cannot be utilized, then the same can be given as refund. So, there is indeed a provision. Just because the notification has not been issued at the time; we cannot deny the benefit provided in the Rule. Moreover, all the case laws cited by the learned advocate point out that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
