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2014 (5) TMI 983 - CESTAT BANGALORERefund of CENVAT credit - export of exempted services - Revenue contends that appellant should not have utilized more than 20% of service tax payable during the period by utilizing the CENVAT credit as per the provisions of Rule 6(3)(c) of CENVAT Credit Rules 2004 - Held that:- In the hierarchy of statutes, the law comes first, the rule comes later and the notification comes next. - harmonious construction of provisions of Rule 5 and Rule 6 is required to be made and Rule 6 cannot be read in such a manner that it negates what is provided under Rule 5. It has to be noted that in this case, the restriction is only for using the credit to the extent of more than 20% and there is nothing as regards the eligibility of the assessee for taking the credit. We are required to see whether the service has to be treated as exempted or service as exported and refund of CENVAT credit is admissible as per the provisions of Rule 5 - The only difficulty for getting the refund is that notification has not been issued and if the intention of the legislature was not to give refund Rule 5 would not have been contained the provision relating to refund subject to safeguards prescribed under the notification. Therefore, in my opinion, it would be appropriate to treat the output service as one exported and not exempted and therefore provisions of Rule 6(3)(c) is not attracted which, in my opinion, would be in accordance with legislative intention and would be in accordance with principles of harmonious construction - Decided in favour of assessee.
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