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2014 (12) TMI 330 - AT - Service TaxDenial of refund claim - Export of services - Discrepancy in FIRCs produced and the export undertaken - Notification No. 5/2006 dated 14/03/2006 - Revenue contends that Notification No. 5/2006 dated 14/03/2006 in clause (b) of the opening paragraph states that credit shall be allowed in respect of inputs or input service used 'in' providing output service which is exported without payment of tax - Held that:- Certificates have been corrected by the collecting bank and therefore, this objection would no longer be sustainable. However, the correct certificates were not available before the lower authorities when they rejected the claim and, therefore, the matter is remanded back to the refund sanctioning authority for consideration of the revised FIRCs now obtained by the assessee-appellant from the collecting bank and after considering the same, refund shall be granted to the appellant as per law. In any case, the department has not objected to the assessee-respondent taking the credit at the relevant time and the objection has been raised only at the time of filing of the refund claims. There cannot be two different yardsticks; one for permitting the credit and the other eligibility for granting credit. Whatever credit has been permitted to be taken, the same are permitted to be utilized and it is not possible to have two provisions, one for grant of refund or as rebate. Without questioning the credit taken, the eligibility to refund cannot be questioned. - Following decision of Commissioner of Service Tax, Delhi vs. Convergys India Pvt. Ltd. [2009 (5) TMI 50 - CESTAT, NEW DELHI] - Decided in favour of assessee.
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