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2016 (11) TMI 1287 - CESTAT NEW DELHI

2016 (11) TMI 1287 - CESTAT NEW DELHI - TMI - 100% EOU - CENVAT credit - Central Excise Duty paid on some inputs and of Service Tax paid on input services, which they use for payment of duty in respect of their DTA clearances - Rule 5 of the Cenvat Credit Rules, 2004 readwith Notification No. 5/2006-CE (NT) dated 14/3/06 - Held that: - I find that the point of dispute in this case stand decided in the favour of the appellant by the Tribunalís judgment in the case of CCE, Hyderabad Vs. Ravi Foods .....

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006, the calculation which has been worked out by the Commissioner(Appeals) in the impugned order, if is correct, then the refund is liable to be sanctioned to the respondent/assessee. Moreover, I also find that the point regarding one to one co-relationship is not the point stemming from the order-in-original, which was passed by the Assistant Commissioner. It is only at the review stage that the point of one to one co-relationship between the receipt of input service in installation of capital .....

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y have availed Cenvat credit of Central Excise Duty paid on some inputs and of Service Tax paid on input services, which they use for payment of duty in respect of their DTA clearances. Rule 5 of the Cenvat Credit Rules, 2004 readwith Notification No. 5/2006-CE (NT) dated 14/3/06 issued under this Rule provides that where any inputs or input services are used in manufacture of final product, which is cleared for export under bond or under letter of undertaking or is used in the intermediate prod .....

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ll be allowed refund of such amount subject to such safeguards, conditions and limitations as prescribed in the notification. This cash refund of such accumulated Cenvat credit is subject to the condition that the manufacturer or output service provider has not claimed drawback under the Customs and Central Excise Duty Drawback Rules, 1995 in respect of the export of finished product or has claimed rebate of duty under Central Excise Rules or has claimed rebate of service tax under export of Ser .....

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fore Commissioner (Appeals) on the grounds that - (a) Out of the accumulated Cenvat credit whose refund is sought, an amount of ₹ 92,576/- is Cenvat credit in respect of GTA service related to outward transportation of the export goods to which the appellant are not entitled and, hence, there was no question of its refund under Rule 5 and (b) Refund amount of ₹ 11,08,095/- is in respect of Cenvat credit of service tax paid on erection, installation, commissioning service for erection .....

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ppeal with regard to refund of Cenvat credit of service tax paid on GTA service for outward freight and upholding the Assistant Commissioners order in this regard, allowed the department s appeal in respect of the refund of credit of service tax paid on erection, installation, commissioning service used for erection, installation, commissioning of captive power plant on the ground that while the power plant had started functioning on 31/3/2008, the goods in respect of which this refund claim ha .....

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rom 31/3/2008, the refund claim is in respect of the goods exported prior to this date, no one to one relation is required to be established between the availment of Cenvat credit in respect of same inputs and input services and their use in the manufacture of final products, that the appellant were eligible for Cenvat credit in respect of input services as soon as the same had been received by them and payment for the same had been made by them and since the Cenvat credit in respect of erection .....

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