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2020 (1) TMI 101 - AT - Service TaxRefund of CENVAT Credit - common input services used for taxable as well as exempt services - they have availed CENVAT credit in proportion to the taxable services rendered - Rule 5 of CENVAT Credit Rules 2004 read with Notification No. 5/2006-CE(NT) dated 14.03.2006 - HELD THAT:- 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 - 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 verification in each case. 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 they have exported also gets subsumed and taken care of in this calculation - appeal allowed by way of remand.
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