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2016 (11) TMI 235 - CESTAT BANGALORE

2016 (11) TMI 235 - CESTAT BANGALORE - TMI - Refund claim - 100% EOU - utilisation of CENVAT credit on input and input services - export of industrial sewing machine needles falling under Chapter subheading 8452 30 of the First Schedule of CETA 1985 - Held that: - I am of the considered opinion that the impugned order is not sustainable in law as all the services involved in the present appeals have been held to be input services by various decisions of the Tribunal and the High Court as held in .....

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ated:- 2-11-2016 - Shri S. S. Garg, Judicial Member Shri H.Y. Raju, Advocate For the Appellant Shri Mohammed Yousuf, AR For the Respondent ORDER Per S. S. Garg The appellant have filed three appeals and in all the three appeals identical issue is involved and therefore all the three appeals are being disposed of by this common order. Briefly the facts of the present case are that the appellant is engaged in the manufacture and export of industrial sewing machine needles falling under Chapter sub .....

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iod Amount E/28339/2013 No.1/2011 dated 3.1.2011 No.356/2013 dated 26.8.2013 July September 2009 Rs.1,16,241/- E/28340/2013 No.42/2011 dated 24.6.2011 OIA No.367/2012 dated 28.8.2013 January March 2010 Rs.1,67,863/- E/28341/2013 No.22/2011 dated 21.4.2011 OIA No.369/2013 dated 28.8.2013 October December 2009 Rs.1,60,298/- The refund sanctioning authority vide various Orders-in-Original as stated supra after examining the conditions specified by the appellant as required under the said Notificati .....

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inding on the usage of the said input services and the said inputs in the manufacture of final product. The said services are not at all input services in manufacturing of their final product and also on the ground that there is no documentary evidence to show that the said input services have been used in relation to the manufacture of final product. Aggrieved by the said order, the appellants preferred the present appeals. 2. I have heard the learned counsel for the appellant and perused the r .....

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nge officer before sanctioning the refund of the unutilised CENVAT of duty and service tax paid on the input and input service. He further submitted that once the availment of CENVAT credit of duty or service tax paid on inputs or input services is accepted and not objected to, the refund proceedings in terms of Notification No.5/2006 dated 14.3.2006 under Rule 5 of CCR cannot be used to determine at that stage whether a service or goods is an input service or input or not. Similarly having allo .....

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earlier period sanctioned the refund on similar services which is also accepted by the department without filing the appeal, ought to have upheld the order of adjudicating authority and dismiss the appeal of the department. Further the learned counsel submitted that in respect of each input service and its utilisation in or in relation to the manufacture has relied upon the case laws which are mentioned below: Sl. No. Services Relied upon case laws 1 Telephone Service * M/s. BPCL vs. CCE, Mumba .....

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12 (277) ELT 359 (Tri.-Ahmd.) 3 Export (Clearance) * M/s. MTR Foods Ltd. vs. CCE, Bangalore: 2011-TIOL-947-CESTAT-BANG. * Semco Electric Pvt. Ltd. vs. CCE, Pune: 2011-TIOL-1579-CESTAT-MUM. 4 Job Work Charges * CCE, Nagpur vs. Ultratech Cement Ltd.: 2010 (20) STR 577 (Bom.) 5 Professional Charges * Jeans Knit Pvt. Ltd. vs. CC, Bangalore: 2011 (21) STR 460 (Tri.-Bang.) * M/s. Life Long Indian Ltd. vs. CCE, Delhi-III: 2011-TIOL-832-CESTAT-DEL. 6 Repair and Maintenance (factory building) * Zydus Nyc .....

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