TMI Blog2015 (7) TMI 431X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee against Order-in-Appeal No. SB (48-49) 48-49/STC/2010 dated 06.05.2010. 2. The issue involved in this case is regarding the rejection of refund claim filed by the appellant assessee under the provisions of Rule 5 of CENVAT Credit Rules, 2004. 3. The appellant had filed a refund claim on the ground that they were not in a position to utilise the Cenvat credit of service tax taken on input services used for providing output services under Banking other Financial services , which were exported. The lower authorities issued a show-cause notice to the appellant directing them to show-cause why the said refund claim be not rejected due to the deficiency as pointed out in the show-cause notice. The show-cause notice was contested by the appellant. The Adjudicating Authority after following the due process of law held against the assessee and rejected the refund claims. Aggrieved by such order, appellant preferred an appeal before the first appellate authority. The first appellate authority in the impugned order held against the assessee on the ground that they had not produced any documentary evidence and that the Cenvat credit of the input services were received by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... early in the terms of the Act or arises by necessary and distinct implication. He would rely upon the decision of the Tribunal in Madura Coats Ltd. 2003 (161) ELT 812, Amigo Brushes P. Ltd. 2008 (231) ELT 271, CCE vs. Lakshmi Packagings Ltd. 2008 (228) ELT 93 and Gujarat Sidhee Cement Ltd. 2007 (216) ELT 56. 6. We have considered the submissions made at length by both sides and perused the records. 7. The issue to be decided in this case is whether the appellant is eligible for the refund of an amount availed as Cenvat credit on the inputs services which were received by the appellant during the period April 2005 to September 2006 for providing output services which are exported. 8. Undisputedly, appellant herein is a provider of services and exports the output service Banking and Financial services.' It is also undisputed that the Cenvat credit availed are in respect of the input services which are used in relation to the export of services rendered by the appellant. 9. It is the case of the Revenue that the appellant as a provider of output services could have availed the benefit of the refund claim under Rule 5 of the CENVAT Credit Rules, 2004 from 14.03.2006 on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Drawback Rules, 1995, or claims a rebate of duty under the Central Excise Rules, 2002, in respect of such duty; Provided farther that no credit of the additional duty leviable under subsection (5) of section 3 of the Customs Tariff Act, shall be utilised for payment of service tax on any output service. Explanation:- For the purposes of this rule, the words output service which is exported means the output taxable service, exported in accordance with the Export of Services Rules, 2005. After March 2006 : 5. Refund of CENVAT credit - Where any input or input service is used in the manufacture of final product which is cleared for export under bond or letter of undertaking, as the case may be, or used in the intermediate product cleared for export, or used in providing output service which is exported, the CENVAT credit in respect of the input or input service so used shall be allowed to be utilized by the manufacturer or provider of output service towards payment of, (i) duty of excise on any final product cleared for home consumption or for export on payment of duty; or (ii) service tax on output service, and where for any reason such adjustment is not po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required in that proviso in as much as this proviso places the condition, that the provider of output services should not have availed draw back under Customs and Central Excise Duties Drawback Rules, 1995. Whereas the fact is that the Customs and Central Excise Duties Drawback Rules, 1995 as It stood prior to 14.3.2006 provide for drawback only in respect of the goods exported and did not provide drawback in respect of services exported. It was only with effect from 13.7.2006 that the drawback rules provide for drawback of service tax paid on input services also used in the manufacture of goods exported. Therefore, there is no question of provider of output services availing drawback. There is also no question of even a manufacturer of goods exported availing drawback of service tax paid on input services prior to 13.7.2006. 11. The revenue aggrieved by such an order preferred an appeal before the Hon'ble High Court of Bombay. Their Lordships rejected the contention of the Revenue by holding as under:- 9. The above finding of the CESTAT cannot be faulted because substituted Rule 5 of the Cenvat Credit Rules, 2004 does not make any distinction between exports made prio ..... 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