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2016 (7) TMI 1346

Head Note:
100% EOU - Refund of unutilised CENVAT credit - Whether the CESTAT is correct in holding that the assessee was within time in claiming refund without discussing the Sec. 11B relevant for refunds under Rule 5 of CCR, 2004 read with N/N. 05/2006-C.E. (N.T.), dated 14-3-2006 and merely relying on the decision of Honíble CESTAT, Mumbai in the case of CCE, Pune-I v. Eaton Industries Pvt. Ltd. [2010 (12) TMI 71 - CESTAT, MUMBAI]? - Held that: - the decision in Bechtelís case [2013 (7) TMI 490 - CESTAT NEW DELHI] being a decision rendered by Division Bench was approved and held to prevail - it was held in the case that In case of export of Services export is complete only when foreign exchange is received in India, relevant date of export of services is date of receipt of foreign exchange - decided against Revenue.

Whether CESTAT is correct in holding that the assessee is eligible to claim of refund of Cenvat credit on construction service relying on case of Infosys Ltd. [2014 (3) TMI 695 - CESTAT BANGALORE], where it was held that assessee is entitled to the Cenvat credit on construction services? - Held that: - the appellant in the Grounds of Appeal mentioned that as against the Infosys Ltd.ís case (supra), the department filed appeal before the Honíble Apex Court and the same is pending but failed to produce copy of the Grounds of Appeal or any stay order granted by Honíble Apex Court staying the judgment in Infosys Ltd.ís case (supra). It is also not known whether a final order is passed by the Apex Court in the said alleged appeal. In these circumstances, we can only uphold the decision of the CESTAT, Bangalore relying on Infosys Ltd.ís case - decided against Revenue.

Whether the Tribunal is correct in remanding the matter with regard to the claim of refund of Cenvat credit on other services such as courier service, repair or maintenance services, telephone service, rent-a-cab service, management consultant service, chartered accountant service, etc., since the said services are not having nexus with their output services i.e. Consulting Engineering Service which was exported online? - Held that: - This point is concerned, the CESTAT, Bangalore only remanded the matter to the original adjudicating authority to consider the other refund claims afresh. As such, we do not find any infirmity or irregularity therein.

Appeal dismissed - decided against Revenue.

 


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