TMI Blog2014 (5) TMI 917X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of service tax paid subsequent to July 2008 claimed as refund in respect of CENVAT credit accumulated during the month of July 2008, the submissions made by the learned counsel are not acceptable. If the CENVAT credit account is correctly maintained, the credit could not be taken in the account in the month of July 2008. When credit could not have been taken, question of accumulation of credit because of inability to utilize does not arise. Just because of the refund claim filed in November 2008 and because appellant did not follow the correct procedure for availing the CENVAT credit, the appellant find themselves in a situation wherein they have claimed accumulated CNEVAT credit before payment and availment of credit. That being th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay service tax and consequently there was an accumulation of CENVAT credit in their accounts. The appellants filed a refund claim on 20th November 2008 for the month of July 2008 under Rule 5 of CENVAT Credit Rules 2004 read with Notification No.5/2006-CE (NT) dt. 14/03/2006 for an amount of Rs.11, 86,792/- in respect of several services utilised as input services by the appellant. The original adjudicating authority allowed the refund claim to the extent of Rs.5,34,097/- and on an appeal filed by the appellant, in addition to the amount allowed by the original authority, the Commissioner(Appeals) allowed the refund on renting of immovable property service. The appeal has been filed against this decision. 2. The learned counsel submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngalore-III Vs. Stanzen Toyotetsu India (P) Ltd. [2011(23) STR 444 (Kar.)], the Hon ble High Court of Karnataka observed that The service mentioned in the section are only illustrative and it is not exhaustive. Therefore when a particular service not mentioned in the definition clause is utilised by the assessee/manufacturer and service tax paid on such service is claimed as CENVAT credit, the question is what are the ingredients that are to be satisfied for availing such credit. If the credit is availed by the manufacturer, then the said service should have been utilised by the manufacturer directly or indirectly in or in relation to the manufacture of final products or used in relation to activities relating to business. If any one of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount is correctly maintained, the credit could not be taken in the account in the month of July 2008. When credit could not have been taken, question of accumulation of credit because of inability to utilize does not arise. Just because of the refund claim filed in November 2008 and because appellant did not follow the correct procedure for availing the CENVAT credit, the appellant find themselves in a situation wherein they have claimed accumulated CNEVAT credit before payment and availment of credit. That being the position, the decision of the lower authorities to disallow the credit cannot be found fault with. As regards the liberty to file fresh refund claim, it is only an observation which will be of no use to the appellant since the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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