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2015 (4) TMI 453 - CESTAT CHENNAI

2015 (4) TMI 453 - CESTAT CHENNAI - TMI - Refund of unutilized accumulated CENVAT Credit - Duty drawback claim - Held that:- So far as the claim of drawback is concerned, there is no material evidence on record to appreciate that export of the appellant were supported by drawback claim. There was no enquiry done with the customs authority. Learned counsel in all fairness states that if any enquiry is done no material showing the export under drawback claim can be discovered by Revenue. Therefore .....

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und of the cenvat credit pertaining to service tax remaining unutilized and carried forward, the Hon'ble High Court of Bombay has held in the [2011 (2) TMI 503 - BOMBAY HIGH COURT] that in the absence of any distinction in Rule 5 prior to 13.2.2006, appellant cannot be disentitled to claim of refund thereof. Therefore entire carried forward credit remaining unutilized should be refunded. - Matter remanded back - Decided in favour of assessee. - Appeal Nos. E/194/2008 & E/320/2008 - Final Ord .....

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e respective services. Accordingly, it was entitled to cenvat credit of such service tax. But such credit not being possible to be utilised that was accumulated. Therefore, appellant claimed refund of ₹ 67,85,179/- of such accumulated credit under Rule 5 of Cenvat Credit Rules, 2004. This claim involved in Appeal No.E/320/2008 pertains to the month of July 2006. Similar such claim of ₹ 69,24,938/- involved in Appeal No.E/194/2008 pertained to the month of June 2006. Two different ret .....

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2. It is explained by learned counsel that it is a fact that although service tax paid was eligible for drawback claim, there was no law earlier for such claim. Drawback on such service tax was allowed with effect from 13.7.2006 and relevant rule was amended to allow drawback of service tax paid. When the rule was not permitting drawback on service tax, appellant has not at all claimed the drawback thereon. That can be established if the authority verify entire record relating to exports. The d .....

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cision of the Hon'ble Bombay High Court in the case of CST Mumbai Vs WNS Global Service (P) Ltd. 2011 (22) STR 609 (Bom.), there cannot be denial of carried forward credits to be refunded as it was not possible to be utilized in view of the status of the appellant as an exporter manufacturer. He further submits that when Rule 5 has not made any provision prohibiting carried forward credits to be refunded that does not take away right of the appellant to the refund since taxes are not exporte .....

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m once in June 2006 and in July 2006 of different amounts. Therefore, only one claim can be entertained if that is admissible. Secondly, appellant failed to produce claim of drawback. Thirdly there cannot be carry forward of cenvat credit. Fourthly, debit notes disentitled the appellant to the refund of cenvat credit. 6. Heard both sides and perused the records. 7. So far as the claim of drawback is concerned, there is no material evidence on record to appreciate that export of the appellant wer .....

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aid, refund of cenvat credit of service tax shall not be allowed. It may be stated that when the drawback on service tax was not extended before 13.7.2006, claim thereof cannot be presumed. 8. When there is no provision to disallow refund of the cenvat credit pertaining to service tax remaining unutilized and carried forward, the Hon'ble High Court of Bombay has held in the aforesaid judgement that in the absence of any distinction in Rule 5 prior to 13.2.2006, appellant cannot be disentitle .....

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