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2023 (12) TMI 179 - AT - Service TaxRefund of service tax paid on the input services - Export of services - appellant did not produce the copy of invoices for examination by the learned Commissioner (Appeals) - The appellant has assailed the impugned order on the ground that the authorities below cannot question the manner of availment of CENVAT credit. - HELD THAT:- Rule 3 ibid is the enabling provision, which entitles a manufacturer or a service provider to avail CENVAT credit of Central Excise duty paid on the inputs and service tax paid on the input services. The manner of availment and utilization of CENVAT credit is contained in the CENVAT statute. If availment or utilization of the credit is not in conformity with the CENVAT statute, then Rule 14 ibid provides that such irregularly availed or utilized CENVAT credit can be recovered from the assessee and for effecting such recovery, the provisions of Section 11A of the Central Excise Act, 1944 or Section 73 of the Finance Act, 1994 shall apply mutantismutandis - Since, Rule 5 ibid is a self-contained rule, which provides for grant of refund of accumulated CENVAT credit in case of exportation of the services, while dealing with such provision, the department cannot take recourse to the other provisions in the statute to say that availment of credit or utilization of credit is not in conformity with the statutory provisions. Rule 5 refund is permissible in case of observance of the formula laid down therein, which the appellant in this case has complied with. Since, the output services were exported by the appellant, the un-utilized CENVAT credit availed on the input services should be available to the appellant. There are no merits in the impugned order, insofar as it has denied the refund benefit to the appellants - appeal allowed in favour of appellant.
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