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Decos Software Development Pvt. Ltd., EMTEC Technologies Pvt. Ltd., Saama Technologies (India) Pvt. Ltd. Versus Commissioner of Central Excise, Customs & Service Tax, Pune-III

2016 (5) TMI 999 - CESTAT MUMBAI

Refund claim - Rule 5 of the Cenvat Credit Rules, 2004 - quarter July 2012 to September 2012 - Air Travel Agent's Service, Rent-a-cab Scheme Operator's Services and Telecommunication/Internet Telecommunication services - Cenvat Credit availment of July to September 2012 was wrongly shown in the S.T.3 Return for the quarter April to June 2012 for which no revised claim was filed - Held that:- even though the receipt of input is in the different period and credit was availed in the subsequent peri .....

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have taken credit twice and the appellant is not contesting the same, hence the same is upheld. The matters are remanded to the adjudicating authority to pass a fresh de novo adjudication by taking into consideration my above observations. - Appeals allowed by way of remand - Appeal No. ST/89439, 89746/2014 and Appeal No. ST/86335/2015 - A/87322-87324/SMB/16 - Dated:- 25-4-2016 - SHRI RAMESH NAIR, MEMBER (JUDICIAL) For the Petitioner : Shri D.H. Nadkarni, Advocate with Shri M.P. Joshi, Advocate .....

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cted the part of the refund on the ground that the Cenvat Credit pertaining to period prior to 1.7.2012 was claimed as Net Cenvat Credit for the quarter July 2012 to September 2012. It was contended by the lower authority that as per the ST-3 Return filed by the appellants the Cenvat Credit was shown to have been taken during the quarter April 2012 to June 2012. However, the record of Cenvat Credit of the appellant is showing credit availed during the quarter July 2012 to September 2012. The a .....

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chnologies (India) Pvt. Ltd. the lower authority also denied the refund/cenvat credit in respect of three services i.e. Air Travel Agents Service, Rent-a-cab Scheme Operators Services and Telecommunication/Internet Telecommunication services. Aggreived by the adjudication order, the appellants filed appeals before the Commissioner (Appeals) who concurring with the adjudicating authority rejected the appeal in toto, therefore the appellants are before me. 3. Shri D.H.Nadkarni, Ld. Counsel for t .....

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arding the contention of the adjudicating authority and the appellate authority that the Cenvat Credit pertains to the period prior to 1.7.2012 for the reason that the same was shown as Cenvat credit availed in the ST.3 return for the quarter April to June 2012 the appellant had made categorical statement before the adjudicating authority that this was shown as mistakenly and since the same could not be pointed out within time. The revised return could not be filed since there is a time limit fo .....

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atively submits that even though if it is contended the credit pertains to the period prior to 1.7.2012, the same was carried forward in the quarter July to September 2012. He submits that the services in respect of all those invoices which are dated prior to 1.7.2012 were indeed used in relation to export of service taken place in the quarter July to September 2012. Therefore, the said credit should be considered as availed during the relevant period and should not have been reduced from the to .....

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s Net Cenvat Credit and any of the Cenvat credit which pertains to the period other than the relevant quarter can not be included in the Net Cenvat credit. In the present case, the appellant taken the net Cenvat credit not only in respect of Cenvat credit pertains to the quarter July to September, 2012, but also the Cenvat credit which pertains to the period prior to 1.7.2012. Therefore the said Cenvat credit is not the part and parcel of the net Cenvat credit as provided in Rule 5 of Cenvat Cre .....

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d. 5. I have carefully considered submissions made by both the sides. As regard the term Net Cenvat Credit it is provided under clause (B) of Rule 5(1) which reads as under:- Rule[5.Refund of CENVAT Credit - 1) A manufacturer who clears a final product or an intermediate product for export without payment of duty under bond or letter of undertaking, or a service provider who provides an output service which is exported without payment of service tax, shall be allowed refund of CENVAT credit as d .....

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the relevant period; From the above definition of Net Cenvat Credit , it is very clear that it covers the total Cenvat Credit availed on input and input services during the relevant period. Therefore in my view whatever Cenvat Credit is availed in the quarter July to September, 2012 shall be taken as Net Cenvat Credit. If the Cenvat credit is availed in any period prior to 1-7-2012, the same cannot be taken into Net Cenvat Credit for the quarter July to September, 2012. Therefore even though th .....

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cing the amount of Cenvat Cr4edit in the quarter July to September 2012 is correct or otherwise. I observe that both the lower authorities have heavily relied upon the quarterly ST-3 return that whatever Cenvat Credit availment was shown in the ST-3 return for April to June, 2012 is correct and final and on this basis the Cenvat Credit account produced by the appellant was brushed aside. In this regard, I am of the view that just because the appellant have filed ST-3 return and shown the Cenvat .....

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ppellants are 100% exporting their services, therefore if the appellants would have availed Cenvat Credit in the quarter April to June 2012, nothing prevented them to claim the refund for the quarter April to June 2012 but it appears that since the appellants have availed the Cenvat Credit in the quarter July to September 2012, they can only make claim of refund of Cenvat Credit for the quarter July to September 2012. However, since the lower authorities have concluded the aspect of availment of .....

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d that the Cenvat Credit was availed in July to September 2012 even though on the invoices pertaining to the period prior to 1.7.2012, the refund shall be admissible. In this regard, I refer to a judgment of the Hon ble Gujarat High Court in the case of Commissioner Vs. Man Industries (I) Ltd. 2015 (321) ELT 442 (Guj.) wherein the issue involved was the refund of the duty paid from PLA in terms of Notification No. 39/2001-CE on the condition that the assessee should utilize the entire Cenvat Cre .....

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als decision held that the credit was taken in December 2005, the same cannot be considered as Cenvat Credit for the period March to November 2005. The said judgment is reproduced below: Revenue is in appeal against the judgment of the Customs, Excise and Service Tax Appellate Tribunal ( the Tribunal for short) dated 11-6-2012 raising following questions for our consideration: (i) Whether the Tribunal was legal and correct in allowing the utilization of Cenvat credit in the month of December 20 .....

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ion No. 39/2001, dated 31-7-2001, had claimed refund of a sum of ₹ 4,29,44,310/-. The Adjudicating Officer restricted such claim to ₹ 60,50,093 and disallowed the remaining amount of refund claim of ₹ 3,68,94,217/-. Aggrieved by such decision, the assessee carried the matter in appeal. The Commissioner (Appeals) reversed the order of the Adjudicating Officer and allowed the remaining claim as well, upon which the Department approached the Tribunal. The Tribunal confirmed the vi .....

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n. The only question was whether the assessee fulfilled the conditions, in particular, condition contained in para 1A mentioned above, relevant portion of which reads as under : 1A. In cases where all the goods produced by a manufacturer are eligible for exemption under this notification, the exemption contained in this notification shall be available subject to the condition that the manufacturer first utilises whole of the CENVAT credit available to him on the last day of the month under consi .....

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which do not permit the assessee to take the Cenvat credit on the inputs on capital goods immediately, such as, duty paying documents are available, the goods are as per the required specification, genuineness of the duty paying document is tested as required under the rules, etc. On account of such factors, the assessee could not avail of the Cenvat credit immediately. It was, in fact, stated that for the period between March 2005 and November 2005, due to combination of such factors, though th .....

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ent from the records that the appellants had taken the input/Capital Goods/Service Tax credit of ₹ 70,93,637/- in their Credit Account in December 2005 and utilised the same for payment of duty on the goods cleared during December, 2005. Further there is no dispute on the fact that the appellants had first utilised the entire CENVAT credit available in their CENVAT account as on the last day of December 2005 and the credit balance was Nil and the balance duty amount of ₹ 4,29,44,310/ .....

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ility of CENVAT credit or otherwise on the invoices pertaining to month of March, 2005 to November 2005 which is outside the scope of present appeal. So long as the conditions of the said Notification fulfilled and the credit balance was NIL on the last date of December 2005 the amount paid in P.L.A. during December are liable to be refunded in full. This view is confirmed by the Tribunal in the impugned judgment. 7. In our opinion, the above view does not suffer from any illegality. What para 1 .....

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