TMI Blog2023 (5) TMI 865X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - Service Tax Appeal No. 87767 of 2019 - FINAL ORDER NO. A/85325/2023 - Dated:- 12-1-2023 - HON BLE MR. SANJIV SRIVASTAVA , MEMBER ( TECHNICAL ) Shri Somesh Jain, Adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hence this appeal. 3.1 I have heard Shri Somesh Jain, Advocate for the appellant and Shri Nitin Ranjan, Deputy Commissioner, Authorised Representative for the Revenue. 3.2 Arguing for the appellant, learned counsel submits that:- The refund claim has been denied without issuing any notice under Rule 14 of the Cenvat Credit Rules, 2004. Tribunal has consistently held that in a proceedings under Rule 5 of the Cenvat Credit Rules, the refund claim cannot be faulted or modified till the time show cause proceedings have been initiated under Rule 14 of the Cenvat Credit Rules. He relies on the following decision:- Cross Tab Marketing Services Pvt. Ltd. [2021 (55) GSTL 29 (Tri.-Mumbai)] BNP Paribas India Solution Pvt. Ltd. [2022 (58) GSTL 539 (Tri.-Mumbai)] Qualcomm India Pvt. Ltd. [2020 (43) GSTL 402 (Tri.- Hyd.)] Virtusa (India) Pvt. Ltd. [2020 (41) GSTL 516 (Tri.- Hyd.)] Warburg Pincus India Pvt. Ltd. [2018 (364) ELT 159 (Tri.-Mumbai)] Morgan Stanley Investment Mgmt. [2018 (363) ELT 1158 (Tri.-Mumbai)] Since no notice has been issued to the appellant under Rule 14 of the Cenvat Credit Rules, the refund claim could not have been modifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which they have received the convertible foreign exchange and not during the quarter when they have not received the same. Hence the refund claim to the extent of Rs. 3,09,347/- is found to be premature and liable to be rejected for the relevant quarter. 6.8 The appellant have also contended that due to advent of GST as there is no provision for re-credit of the said amount being refund of service tax thru TRAN 1 or any other mode, the appellant requests that a cash refund must be granted to them for the said amount of Rs. 3,09,347/-. I find that the appellants have not stated as to under what provisions they should be granted cash refund. Here I would like to refer to the following provisions of CGST Act, 2017: Sub section (3) of Section 142 of CGST Act, 2017 (3) Every claim for refund filed by any person before, on or after the appointed day, for refund of any amount of CENVAT credit, duty, tax, interest or any other amount paid under the existing law, shall be disposed of in accordance with the provisions of existing law and any amount eventually accruing to him shall be paid in cash, notwithstanding anything to the contrary contained under the provisions of ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per ST-2 Address as per Invoice description Address as per agreement 84 Keonics Electronics City, Hosur Road, Bangalore 560 100 Prestige premises 3105, Prestige Alecto Building, Electronics City, Hosur Road, Bangalore. 6.14.2 From above it can be seen that the appellants have failed to correlate the address shown in the invoice and agreement with the address as per ST-2 certificate. 6.14.3 Additionally the Appellant contended that the registration is not pre-requirement for availing CENVAT Credit under CCR, 2004. In this regard they have relied upon and submitted copy of Mega Judgment of Bangalore bench of the CESTAT passed vide the Interim order No. 79 of 152/2014 dated 18 September 2014. find that the said order is an interim order and is thus not a final order. In my opinion proper registration of the service provider is must for the purpose of claiming refund of input cenvat credit under Rule 5 of CCR, 2004 read with Notification no. 27/2012-CE. In this regard rely upon the judgment of a Division Bench of this Court. In the matter of Commissioner of Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar of CBEC Board and such draft circulars has no legality and cannot be considered in the facts and circumstances of the subject refund claim. The appellants have relied upon judgment in respect of 'CST, Delhi IV vs. Ernst Young Associates LLP (supra) wherein I find that the policy in question, is in respect of professional indemnity insurance service which is not the case in the instant appeal. Hence the said judgment not squarely applicable in the instant case. Moreover the appellants have submitted copy of Policy preamble/policy schedule of Birla Sun Life wherein I find that the same is issued to Siemens India Ltd. which cannot be relied upon in respect of the appellants due to difference in name/entity. I find that the Hon'ble Tribunal in the case of M/s S. K. D. Lakshmanan Fireworks Industries reported in 2016 (42) STR 359 (Tri-Chennai) held as under: 6. From the above, it appears that in terms of Rule 2(1)(B) of the Cenvat Credit Rules, 2004, credit of service tax paid on General Insurance Services [Section 65(105) (d)], renting of a cab [Section 65(105) (0)), motor vehicle related service (repair, reconditioning or restoration of motor vehicles, in any man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s further contended that Under Rule 5 of the Cenvat Credit Rules, 2004 the appellant are entitled for refund of service tax paid on input services, on the basis of the ratio of the export turnover to total turnover and there is no requirement to prove nexus with the output services and have relied upon the judgment of MSCI Services Pvt Ltd Versus Commissioner of CGST, Mumbai East (supra). I find that the said judgment has not reached finality in as much as the relevant order has been remanded to the original authority for passing of fresh adjudication order with regard to the documents, which were not produced at the time of original proceedings. In the instant case the appellants have failed to prove their contentions. Therefore, the said judgment in this regard relied upon by the appellants does not come to their rescue. It is pertinent to note that in the said judgment, the Hon. CESTAT has referred to Ministry's TRU letter No. D. O. F. No 334/1/2012- TRU dated 16th March, 2012 wherein it is also stated that duties or taxes paid on any goods or services that qualify as inputs or input services will be entitled to be refunded in the ratio of the export turnover to total turnov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erms of Rule 14 ibid, the refund benefit cannot be denied on the ground of non-establishment of nexus between input and the output services. This Tribunal in Appellant s own case on an identical issue, for the period April, 2012 to March, 2013 and April, 2016 to September, 2016 in the matter of M/s. BNP Paribas India Solutions Pvt. Ltd. v. Commissioner of CGST, Mumbai East reported in 2020 (2) TMI 224-CESTAT Mumbai, set aside the denial of refund by the department to the Appellant on the ground of non-establishment of nexus between the input and output services, after discussing Rule 5 ibid in detail. The relevant extract of the said order is as under : xxxx xxxx xxxx 6. Rule 5 of the Cenvat Credit Rules was substituted by Notification No. 18/2012-C.E. (N.T.), dated 17-3-2012 (w.e.f. 1- 4-2012). Under the said substituted rule, it has been provided that the manufacturer or the service provider has to claim the refund as per the formula prescribed therein. Considering such amendment of Rule 5, the Tax Research Unit of Department of Revenue vide circular dated 16-3-2012 has clarified that the new scheme under Rule 5 does not require the kind of correlation that is needed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ire Rule 5 of Cenvat Credit Rules, 2004. The new scheme does not require the kind of correlation that is needed at present between exports and input services used in such exports. Duties or taxes paid on any goods or services that qualify as inputs or input services will be entitled to be refunded in the ratio of the export turnover to total turnover. 2. xx xx xx 4. On perusal of the statutory provisions read with the clarifications furnished by the TRU, it transpires that under the substituted Rule 5 of the rules, there is no requirement of showing the nexus between the input service and the output service provided by the assessee. Since the refund under the said amended rule is governed on the basis of receipt of export turnover to the total turnover, establishing the nexus between the input and output service cannot be insisted upon for consideration of the refund application. 8. In view of above, the impugned order, insofar as it has denied the refund benefit on the ground of non-establishment of nexus between the input and output services, is set aside and the appeal is allowed in favour of the appellant. There is no dispute that the aforesaid decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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