TMI Blog2014 (5) TMI 983X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Department has taken a view that provisions of Rule 6(3)(c) has been attracted which requires the appellant not to utilize CENVAT credit more than 20% of the service tax payable during any month if the input service has been utilized for exempted output service/manufacture of exempted goods. 3. Even though several submissions were made by both sides to support the stand of the appellant as well as the Revenue, I consider that it is not necessary to go into all submissions since I find that appeal can be decided without considering all those submissions. The only one aspect which is required to be considered is whether the appellant has shown that output service was exported or not. This point is being considered since the learned AR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provided that there should be a notification issued in this regard which was issued much later. Rule 6(3) provides that where input service is used in the exempted service as well as dutiable services, credit cannot be used more than 20% of the service tax payable during the month. There is a notification exempting services which are exported which forms the basis for payment in this case. On the one hand we have a rule which provides and which makes the intention clear that where services are exported, refund of input service tax credit if it is not able to be adjusted and we have another rule which provides that if exempted services and taxable services are provided, credit cannot be utilized to the extent of more than 20%. Therefore, we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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