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2016 (1) TMI 1133 - CESTAT MUMBAI

2016 (1) TMI 1133 - CESTAT MUMBAI - TMI - Period of limitation - Refund claim - Rule 5 of Cenvat Credit Rules, 2004 - unutilized input service credit availed - export of exempted service subject to satisfaction of other conditions prescribed in Notification No. 5/2006-CE(NT) dated 14/3/2006 - nexus of input services with export of services - Held that:- it appears that the refund claim has been filed within one year from the date of realization of foreign remittance towards export of services. I .....

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nder Rule 5, therefore this matter of refund of ₹ 81,80,550/- which was rejected on time bar needs to be re-examined and therefore same is remanded to the Adjudicating authority. - Cenvat credit - disallowance in respect of input services and corresponding refund - inadmissible input services - Held that:- we agree with the Ld. Commissioner(Appeals) that when there was no proposal in the show cause notice for denying the Cenvat credit at the stage of processing refund, Cenvat credit ca .....

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ts Shri. D. Nagvenkar, Addl. Commissioner(A.R.) for the Respondent ORDER These two appeals by the assessee and Revenue are directed against Order-in- Appeal No. PUN-EXCUS-001-APP-162-14-15 dated 20/ 1/2015 passed by the Commissioner of Central Excise (Appeals), Pune I, wherein the Ld. Commissioner(Appeals) upheld the rejection of refund amounting to ₹ 81,80,550/- and set aside the rejection of ₹ 16,23,447/-. Ld. Commissioner also allowed the interest on the refund amount of ₹ 1 .....

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put service credit availed during the period April, 2007 to March, 2008. The said four refund claims were rejected by the Asstt. Commissioner vide his Order-in-original No. 25/R/STC/09 dated 23/2/2009. The assessee appealed against the said order dated 23/2/2009, which was dismissed by the Commissioner(Appeals) vide Order-in-Appeal No. PI/VSK/ 161-162/09 dated 29/6/2009. The CESTAT, Mumbai vide it's Order No. A/533/13/CSTB/C-I 6/3/2013/1/4/2013, while deciding the assesse s appeal, it was he .....

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lowed the Cenvat credit of ₹ 17,55, 166/-. Aggrieved by the Order-in-Original dated 8/8/2013, the assessee filed appeal before the Commissioner(Appeals), who vide the impugned order dated 20/1/ 2015 upheld the rejection of refund amounting ₹ 81,80,550/- however set aside the rejection of refund amounting to ₹ 16,23,447/- and allowed Cenvat credit amounting ₹ 17,55,166/- and also extended interest on the refund amount. Ld. Commissioner(Appeals) rejected refund of ₹ 8 .....

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ause notice therefore in the adjudication order disallowing the Cenvat credit and consequentially rejection of refund claim is beyond the scope of Show Cause Notice. Aggrieved by the said impugned order dated 20/1/2015, assessees as well as Revenue both have filed these appeals. 3. Shri. R.J. Naik, Ld. Counsel for the assessee submits that as regard rejection of refund claim of ₹ 81,80,550/- on time bar, the refund is under Rule 5 of Cenvat Credit Rules, 2004. In such refund claim limitati .....

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e adjudicating authority to verify other conditions as prescribed under Notification No. 5/2006-CE(NT) that means Tribunal after considering the issue of limitation allowed the refund and only other conditions to be verified. Therefore refund could not have been rejected on the ground of time bar. He further submits that the factual aspects as regard limitation like 'relevant date' has not been verified by the Adjudicating authority therefore without verifying facts, refund was rejected .....

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in the statement, the refund claim was filed within one year from the date of foreign remittance to the assessee. For this reason, even if limitation of Section 11B is applied, refund is well within limitation, therefore refund was wrongly rejected. He placed reliance on following judgments:- (a) Bechtel India Pvt. Ltd. Versus Commissioner of Central Excise, delhi [2014 (34) S.T.R. 437 (Tri. - Del.)] (b) Alar Infrastructures Pvt. Ltd. Versus Commissioner of C. Ex., Delhi-I[2015 (38) S.T.R. 1087 .....

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owed appeal which does not require any interference. 4. Shri. D. Nagvenkar, Ld. Addl. Commissioner(A.R.) for the Revenue, submits that as regard the rejection of refund claim on time bar, in terms of para 6 of Notification No. 5/2006-CE(NT) which provides that refünd claim under Rule 5 must be filed within the period prescribed under Section 11B therefore it is statutory requirement and non compliance of such requirement will lead to rejection of refund claim. As regard the Revenue's ap .....

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certain input/input services, refund of service tax paid on such services cannot be granted, therefore the adjudicating authority has rightly disallowed Cenvat credit and consequentially rejected refund claim. 5. We have carefully considered the submissions made by both sides. 6. We find that as per the statement submitted by the Ld. Counsel it appears that the refund claim has been filed within one year from the date of realization of foreign remittance towards export of services. If it is corr .....

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er Rule 5, therefore this matter of refund of ₹ 81,80,550/- which was rejected on time bar needs to be re-examined and therefore same is remanded to the Adjudicating authority. 6.1 As regard the Revenue's appeal on the issue of disallowance of Cenvat Credit of ₹ 17,55,166/- in respect of input services and corresponding refund of ₹ 16,23,447/-, on the ground of inadmissible input services, we agree with the Ld. Commissioner(Appeals) that when there was no proposal in the sh .....

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357 and ₹ 6,78,651 (total ₹ 1 7,55, 166/-) as the same was in respect of service tax paid for the services which do not qualify as input service for the output services exported. Accordingly, the refund amount was proportionately reduced. The Appellants have claimed that the services are eligible 'input service' as per its definition and numerous judicial decisions. The Appellants have also submitted that the issue of eligibility of credit, although raised in the original sho .....

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cause notice dated 29-9-2008. This issue was also not discussed in the earlier Order-in-Original dated 23-2-2009. Therefore, the issue which was not the subject matter of the original adjudication proceeding cannot be taken up in the denovo adjudication proceedings without issuing a show cause notice or without giving an opportunity to Appellants in his impugned order dated 08-08-2013, in de-novo adjudication proceedings, has also not discussed or given any reasons while concluding that the ser .....

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