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2021 (3) TMI 238 - HC - Service Tax100% EOU - Refund of the accumulated CENVAT Credit - Output Service of Call Centre provided by the Assessee was exempted under the Notification, having been exported to foreign country, ignoring the effect of Rule 6 of the CENVAT Rules 2004 - interpretation and interplay of Rules 5 and 6 of CENVAT Rules - can a refund under Rule 5 be granted by the Excise Department Authorities even though the Services exported out of India are exempted from payment of any Duty? HELD THAT:- The legal issue which is brought before this Court to be decided which have framed as substantial questions has been considered in the earlier decisions rendered by the Hon'ble High Courts. It appears that the earliest of the decision was in the case of REPRO INDIA LTD. VERSUS UNION OF INDIA [2007 (12) TMI 209 - BOMBAY HIGH COURT]. This decision was relied on by the High Court of Himachal Pradesh in the case of COMMISSIONER OF CENTRAL EXCISE VERSUS DRISH SHOES LTD. [2010 (5) TMI 334 - HIMACHAL PRADESH HIGH COURT]. The substantial questions of law which were framed for consideration in the said decision were identical to that of the substantial questions of law which have been framed in this appeal though the language adopted may be slightly different. The Court after elaborately considering the scheme of the CCR, taking note of Rules 3, 5 and 6 held that it is clear from a bare reading of Rule 5 of the CCE that a manufacturer who exports final product which are exempt can claim refund of CENVAT. High Court of Judicature at Bombay in the case of Commissioner of Central Excise & Cus., Aurangabad vs. Jolly Board Ltd. [2016 (9) TMI 1355 - BOMBAY HIGH COURT], identical issue was considered and the Court held that the assessee was eligible for refund of unutilized CENVAT credit of duty paid in terms of Rule 5 of the CCE. In the said decision, the Court has referred to the decision in the case of Drish Shoes Limited and Repro India Limited. Identical view was taken by the High Court of Rajasthan in the case of Commissioner of CGST, Rajasthan vs. Medicamen Biotech Limited [2018 (7) TMI 2069 - RAJASTHAN HIGH COURT]. The Tribunal has rightly interpreted the words used in Rules 5 and 6 by pointing out that the words used in Rule 6 are “exempted goods/services”, whereas Rule 5 does not use these words and uses the words “final product/output service” - Further, the Tribunal also rightly took into consideration the effect of the notification No.8/2003-ST by pointing out that it is an exemption applicable within the territory of India and goods which are dutiable as well as exempted can be exported, so also, output services which are taxable and exempted can also be exported. Therefore, the Tribunal rightly held that the export need not necessarily confine to dutiable products or taxable services. The idea of Rule 5 was also clearly set out by stating that it is to avoid export of duty/taxes. There is no error in the order passed by the Tribunal - the appeal filed by the revenue is dismissed and the substantial questions of law are answered in favour of the assessee.
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