2023 (1) TMI 917 - AT - Service Tax
Refund claim - rejection on the ground that balance in the CENVAT register should not be taken into consideration for the purpose of grant of refund benefit and that certain input services were not considered for refund inasmuch as those services have no nexus with the output services provided by the appellant - HELD THAT:- The CBE&C vide Circular No. 120/01/2010 dated 19.01.2010 has clarified that the closing balance of the previous quarter can be considered for utilization towards export as opening balance for the subsequent quarter.
Establishment of nexus between the input services and the export of services - HELD THAT:- The Department has not initiated any proceedings for recovery of the irregular credit of input services under Rule 14 of the CENVAT Credit Rules, 2004 read with Section 73 of the Finance Act, 1994. Since availment of CENVAT credit has not been questioned at the material time, subsequent claim of refund under Rule 5 on fulfillment of conditions laid down therein cannot be questioned by the Department at a later stage for denying the refund benefit.
The issue arising out of the present dispute is no more res integra in view of the decisions of the Tribunal in the case of NESS TECHNOLOGIES (INDIA) PRIVATE LIMITED VERSUS COMMISSIONER OF SERVICE TAX DIVISIONV, MUMBAI [2015 (11) TMI 53 - CESTAT MUMBAI], ACCELEYA KALE SOLUTIONS LTD. VERSUS COMMISSIONER, CGST, THANE [2018 (7) TMI 1217 - CESTAT MUMBAI] passed in the case of M/S. TPG CAPITAL INDIA PVT. LTD. VERSUS COMMISSIONER OF CGST, MUMBAI. [2019 (9) TMI 1592 - CESTAT MUMBAI] passed in the case of M/S M. NET PARTNER TECHNOLOGIES PVT. LTD. VERSUS COMMISSIONER OF C.G. ST, MUMBAI EAST [2020 (1) TMI 73 - CESTAT MUMBAI]. The ratio laid down in the said orders of the Tribunal is to the effect that while granting the refund benefit under Rule 5 ibid read with the notification issued thereunder, the Department cannot object to such claim of the assessee on the ground that there was no nexus between the input services and exportation of the output service.
There are no merits in the impugned order, insofar as the Commissioner (Appeals) has denied the refund benefit to the appellant - appeal allowed.