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2023 (5) TMI 864 - AT - Service TaxRefund claim - denied on the ground that Cenvat credit against certain services was not admissible - invocation of Rule 5 of the Cenvat Credit Rules (correct or not) - HELD THAT:- The exercise taken by the lower authorities for denying the credit was to be initiated as per Rule 14 of the Cenvat Credit Rules and that could not have been taken in a proceedings under Rule 5. This view has been held contrary by the Tribunal as referred to the order of the Tribunal in the case of M/S. CROSS TAB MARKETING SERVICES P. LTD. VERSUS C.C.G.S.T., MUMBAI EAST [2021 (9) TMI 979 - CESTAT MUMBAI] where it was held that Since the Commissioner (Appeals) has by the impugned order held the refund to be admissible, to the extent of CENVAT Credit held admissible by him subject to verification of the documents by the original authority I modify his order to this extent i.e. that entire credit as claimed by the Appellant for determining the refund amount is held admissible if not held admissible in proper proceedings initiated under Rule 14 of the CENVAT Credit Rules, 2004. Similar view has been taken by the Tribunal in the case of M/S BNP PARIBAS INDIA SOLUTION PVT LTD VERSUS COMMISSIONER OF CGST, MUMBAI EAST [2021 (12) TMI 676 - CESTAT MUMBAI] where it was held that Indisputably, in the refund proceedings under Rule 5 ibid as amended, any such attempt to deny or to vary the credit availed during the period under consideration is not permissible. If the quantum of the Cenvat credit is to be varied or to be denied on the ground that certain services do not qualify as input services or on the ground of ‘no nexus’, then the same could have been done only by taking recourse to Rule 14 ibid. In view of the above the impugned order cannot be sustained on merits - appeal allowed.
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