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2016 (4) TMI 691 - CESTAT CHENNAI

2016 (4) TMI 691 - CESTAT CHENNAI - TMI - Refund of Cenvat credit - Notification No.27/2012-CE (NT) dt. 18.6.2012 read with Rule 5 of CENVAT Credit Rules, 2004 - Export of service and receiving foreign exchange as consideration - Lower authority rejected the claim on certain procedural lapses - Held that:- on the objection that invoice submitted by the service provider does not indicate all particulars could have been avoided if the lower authority had called for the details of the purchase orde .....

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t should not be difficult for the appellants to give the particulars of such sub agents and the manner in which such services were to be provided. Therefore the rejection of invoices on the ground of lack of particulars is not correct. - On the ground that there was no agreement between the service providers and the appellants for providing the service. It is the ground of the Assistant commissioner that the copy of the agreement was given only after issue of Show cause notice. This ground f .....

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he services exported are treated as 'exempted services' for which no credit is admissible. It is observed that under Rule 6(8) of the Cenvat credit rules, services provided will not be an exempted service, if conditions prescribed under Rule 8(a) and (b) are satisfied. The lower authority had not examined whether these conditions are satisfied. Also bank realisation certificates has not been correlated with the export invoices. In the event of non-realisation of remittances for export of service .....

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erified by the Assistant commissioner, who had passed the order-in-original. I, therefore, remand the entire matter to the original authority for examining the issue afresh. Appeal disposed of - Appeal Nos.ST/40150/2015 & ST/40151/2015 - Final Order No.40616-40617/2016 - Dated:- 29-3-2016 - SHRI P.K. CHOUDHARY, JUDICIAL MEMBER For the Petitioner : Shri M. Karthikeyan, Advocate For the Respondent : Shri R. Chandrasekaran, AC (AR) ORDER Both the appeals are arising out of a common impugned order p .....

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reign exchange, they have opted to avail refund in view of Notification No.27/2012-CE (NT) dt. 18.6.2012 read with Rule 5 of CENVAT Credit Rules, 2004. The appellant has appointed sub-agents within the country for the purpose of canvassing business and procuring orders. The invoices raised by the sub-agents on the appellants, includes service tax. The service provided by sub-agents being eligible as input service for the appellants, they have availed cenvat credit. Since the appellants are havin .....

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Sl. No. date 1. 6,99,519 07/12-09/12 29.08.13 R.20/2014-(AC) dt. 24.06.14 2. 1,48,008 10/12-12/12 19.09.13 -do- 3. 2,05,054 04/13 - 06/13 05.11.13 -do- 4. 75,723 04/12 - 06/12 21.08.13 R.21/2014-(AC) dt. 11.07.14 11,28,304 The refund claims were rejected by the adjudicating authority which was upheld by the Commissioner (Appeals). Being aggrieved, the appellant-assessee is in appeal before this Tribunal. 3. Ld. counsel Shri M. Karthikeyan, Advocate appearing on behalf of the appellant-company d .....

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ws my attention to sample copies of tax invoices submitted by them on pages 76 to 78 of the appeal paper book wherein the description of service provided to the overseas company has been mentioned as "commission" for the service rendered. He also draws my attention to the Bank Realization Certificate (BRC) on pages 122 to 126 of the appeal paper book wherein the details of remittances is furnished. The purpose is mentioned as "Sales Commission". He drew my attention to page 9 .....

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een amended with the following remarks :- This agreement shall come into force on the day and year first above written and be valid thereafter for one (1) year upon expiry of which the Agreement shall be automatically renewed for further periods of one (1) year each time, unless otherwise terminated in writing by either MURATA or AGENT with prior notice. He submits that all the conditions have been fulfilled and there is no case to reject their refund claims and prays for setting aside the impug .....

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is a combination of several export invoices and they were not reconciled by appellant-assessee at the time of filing refund claim. He also submits that there was no debit by appellant from cenvat account at the time of making the claim as required under Rule 5 of CCR 2004 and Notfn 27/2012-CE (NT) dt. 18.6.2012. He further submits that the claim is for ₹ 11,28,304/- and in their cenvat account they have made debit entry of ₹ 2,05,054/- only in the month of June 2013 and they have not .....

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E (NT) dated 18.06.2012 as amended. 7. It is seen from the order-in-original passed by Assistant Commissioner that it is accepted by the lower authorities that the service in question perse is eligible for credit. However, the refund claimed has been denied on certain procedural lapses taking into consideration, the procedure involved in Rule 5 of the Cenvat credit Rule 2004 and the Notification cited supra. 8. The first objection of the lower authority is that the invoice submitted by the servi .....

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held to be eligible for the credit, the lower authorities should have verified the nature of payment effected on such services and the appointment of said sub agents who had provided such service. It should not be difficult for the appellants to give the particulars of such sub agents and the manner in which such services were to be provided. Therefore the rejection of invoices on the ground of lack of particulars is not correct. 9. It is also noticed that the refund had been rejected on the gr .....

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