TMI Blog2020 (1) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... determine whether availment of CENVAT Credit in the first place is correct or otherwise. There is a separate provision for recovery of irregularly availed CENVAT credit under Rule 14 of CENVAT Credit Rules 2004. There are also provisions for recovery of interest as well as imposition of penalties if any CENVAT Credit is irregularly availed - thus, the rejection of refund of CENVAT Credit partly on the ground that the input services are not eligible for CENVAT Credit at all is not correct in law. As far as the appellant s assertion that the formula given in Notification No. 5/2006-CE(NT) dated 14.03.2006 for determining the maximum refund has been wrongly applied by the lower authorities is concerned, we find that this needs factual verif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness Auxiliary Services . The appellant availed CENVAT credit attributable to the taxable services rendered by them and had not availed CENVAT credit attributable to the exempted services. With respect to common input services, they have availed CENVAT credit in proportion to the taxable services rendered. The appellant filed refund claims for different periods under Rule 5 of CENVAT Credit Rules 2004 read with Notification No. 5/2006-CE(NT) dated 14.03.2006 as amended from time to time. These refund claims are partly allowed and partly disallowed by the lower authority. Aggrieved by the partial disallowance of the refund, appellant appealed before the 1st appellate authority who upheld the orders of the lower authority and hence these appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of bought out goods sold during the given period. 3. The appellant submits that this formula has been incorrectly applied by the lower authorities by taking the total turn-over which includes both taxable and exempted services while denying the CENVAT credit availed as only CENVAT credit applicable to taxable services. 4. It is a well settled legal position that admissibility of CENVAT credit cannot be decided while determining the refund under Rule 5 of CENVAT Credit Rules 2004. If any CENVAT credit is not admissible, the same needs to be recovered under Rule 14 of CENVAT Credit Rules 2004 through an appropriate notice. The appellant relies on the case laws of Convergy s India Pvt Ltd [2009-SR 1-GJX-0172-CEST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecords. It is a well settled principle that availment of CENVAT credit, its utilisation and its refund are different aspects dealt with under CCR 2004. Rule 5 of CENVAT Credit Rules 2004 provides for refund of CENVAT Credit in respect of goods/services exported out of India. Nowhere in this rule 5, is there a provision to determine whether availment of CENVAT Credit in the first place is correct or otherwise. There is a separate provision for recovery of irregularly availed CENVAT credit under Rule 14 of CENVAT Credit Rules 2004. There are also provisions for recovery of interest as well as imposition of penalties if any CENVAT Credit is irregularly availed. Therefore, we agree with the appellant that the rejection of refund of CENVAT Credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exporter claims the facility of refund under this rule. 2. Total turnover means the sum total of the value of, - (a) all output services and exempted services provided, including value of services exported; (b) all excisable and non excisable goods cleared, including the value of goods exported; (c) The value of bought out goods sold, during the given period. This formula needs to be applied as it has been drafted without any intendment or modifications. For this limited purpose of calculation we remand the matter to the original authority. The third issue raised by the appellant that they have not availed CENVAT credit in respect of the exempted services which the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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