TMI Blog2011 (11) TMI 256X X X X Extracts X X X X X X X X Extracts X X X X ..... that 'input services' includes activities like services of Chartered Accountant, telephone services. Further, recruitment of manpower for maintenance of mess is clearly an activity relating to the business of the appellants. Denial of the refund treating these three services as not 'input service' is not correct. Regarding the denial of refund of ₹ 12,078/- as time barred it is to be noticed that Section 11B relates to refund of excise duty paid. Accumulated credit lying in the CENVAT credit account and permitted to be refunded in terms of Rule 5 of the CENVAT Credit Rules do not attract the provisions of Section 11B of the Central Excise Act 1944. Refunds are thus allowed. - ST/959/2010 - Final Order No. 775/2011 - Dated:- 21-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en rejected for not complying with the provisions of Rule 4 (7) of CENVAT Credit Rules 2004, a sum of Rs. 75,685/- has been denied on the ground that the credit has been taken in respect of services which could not be treated as 'input services' in relation to the goods exported, and the balance of Rs. 12,078/- relating to the period 01.04.2006, 24.05.2007 was rejected as barred by limitation under Section 11B of the Central Excise Act 1944. 4. The party filed an appeal against the rejection of part of the refund claim before the Commissioner (Appeals) and the Commissioner (Appeals) has upheld the order of the original authority. 5. Learned counsel for the appellants challenges the impugned order on the following grounds: a) The orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 12,078/-, she submits that the refund related to unutilized credit and not of any duty paid. Therefore, the provision of Section 11B relating to refund of duty paid does not apply. 6. Learned DR, supporting the order of the Commissioner (Appeals), made the following submissions: a) The order of the original authority dated 19.09.2007 rejecting the refund claim was on a limited ground namely the final products are exempted and the order of the Commissioner (Appeals) dated 18.03.2008 also dealt only with the said issue and allowed the appeal of the party. Therefore, in denovo proceedings it was open to the original authority to examine the refund claim on the issues in the light of various provisions of law. Original authority has exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not gone against any of the findings of the Commissioner (Appeals) and partly allowed their refund claim and rejected the rest of it. This exercise cannot be treated to be in violation of the order dated 18.03.2008 of the Commissioner (Appeals) as the order of the Commissioner (Appeals) was not specifically directing the sanction of the refund claim. 8. Having held as above, it is appropriate to examine the grounds on which the claims have been rejected. 9. The original authority vide order dated 26.11.2008 rejected a sum of Rs. 3,92,848/- on the ground that the appellants have taken credit even before payment of charges for the services to the service providers. However, there is no allegation that the appellants have not paid ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s is clearly an activity relating to the business of the appellants and, therefore, denial of the refund treating these three services as not 'input service' is not correct. At any rate there is no allegation on finding that they are not eligible to take credit under Rule 3 of the CENVAT Credit Rules in respect of all these services. 11. Regarding rejection of part of the claim as time barred under Section 11B, it is to be noticed that Section 11B relates to refund of excise duty paid. In relation to CENVAT credit taken, only when the CENVAT credit is utilized for the purpose of paying excise duty and the amount was debited, the amount so debited becomes duty paid. Accumulated credit lying in the CENVAT credit account and permitted to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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