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2016 (12) TMI 20 - CESTAT HYDERABAD

2016 (12) TMI 20 - CESTAT HYDERABAD - TMI - Refund - Rule, 5 of CENVAT Credit Rules read with Notification No. 5/2006-CE (NT) dated. 14.03.2006 - 100% EOU - sales commission agent services and CHA services - nexus of input services with output services - Held that: - The CHA service as well as commission agent service can be undoubtedly said to be services which are availed and utilized by the appellant for the export of finished products - With regard to the issue whether the appellant is eligi .....

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e Respondent ORDER [ Order per Sulekha Beevi, C.S. ] The appellant is aggrieved by the rejection of refund claim filed by the appellant under Rule, 5 of CENVAT Credit Rules read with Notification No. 5/2006-CE (NT) dated. 14.03.2006. 2. The appellants are registered as manufacturer of Processed Human Hair under 100% EOU. The status of the appellant was previously that of proprietorship and converted later to partnership firm. After changing in to partnership firm, it was converted in to 100% EOU .....

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in their books of account. Being 100% EOU they could not utilize the credit and appellants filed the refund claim for refund of service tax paid in respect of sales commission agent services they had availed CHA services on which also credit was taken. A Show Cause Notice was issued proposing to reject the refund claim on the ground of being time barred and also alleging that the services do not have nexus with export of goods. 3. After adjudication the refund sanctioning authority rejected the .....

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ellant. Aggrieved by the rejection of refund claim on the above ground, the appellant is now before the Tribunal. 4. On behalf of the appellant, the Ld. Counsel Shri. Suresh Astekar submitted that due to ignorance there was omission to pay service tax on sales commission agent service during the period 2009 -2010 to 2011. The appellants there after on being pointed out by department, the service tax was paid and availed credit on the said service. He submitted that these services as well as CHA .....

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He also relied upon the judgments laid in Xilink India Technology Services Hyderabad Vs. CCE & ST, Hyderabad-IV [2016-TIOL-2087-CESTAT-Hyderabad] and Samvardhana Motherson International Ltd., Vs. CC & CE & ST, Noida [2015(11) TMI 166 CESTAT, New Delhi] and argued that credit is admissible and therefore the refund ought to be granted. The Ld. Counsel also submitted that the Commissioner (Appeals) has travelled beyond the Show Cause Notice while rejecting refund for the reason that at .....

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01.03.2010, 10.11.2010 and 25.03.2011. That the period of refund claim pertains to February, 2012 & March, 2012. That as the invoices are for past period, the appellant is not entitled to the refund. 6. I have heard the rival submissions. At the outset it has to be stated that the issue of time bar has been held in favor of appellants by Commissioner (Appeals). The issues left before me is whether rejection of refund claim on the ground that sales commission agent services and CHA services a .....

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artment to deny the credit stating that these services have no nexus with goods exported. With regard to the issue whether the appellant is eligible for refund in respect of credit availed for earlier period, the D.O.F. No. 334/1/2010-TRU, dated.26.02.2010 clarifies the same, and is reproduced as under: Refund of accumulated CENVAT credit to exporters: Amendments in Notification No. 5/2006-C.E. (N.T.) 8.1. It may be recalled that a number of representations were received from exporters, especial .....

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measure, CBEC issued a clarificatory circular No. 120/01/2010-ST., dated 19.01.2010. It was however felt that a permanent solution would require supplementing the clarification with certain amendments to the notification, part of which had to be retrospective in nature. Accordingly, Notification No. 5/2006-CE (NT) has been amended vide Notification No. 7/2010-CE(NT), dated 27th February, 2010. This mainly deals with the procedure that needs to be adopted in case o the new refund claims. However, .....

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cumulated CENVAT credit to exporters: Amendments in Notification No. 5/2006-C.E. (N.T.) 3) To give legal backing to the above said circular, leading to faster and fair settlement of the refunds claims, changes have been effected in Notification No. 5/2006-C.E. (N.T.). Some of the changes have been made retrospective so that the pending cases are also covered. Other changes are being brought in prospectively, and are aimed at assisting the Department officers in faster processing of refund claims .....

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added in main condition (a) of the Notification. 2) The word in contained in main condition (b) of the said Notification has been replaced with for . The above two changes ensure that the provisions of the refund notification and the CENVAT Credit Rules are aligned and that refund is granted on all goods or services on which CENVAT can be claimed by the exporter of goods or services. 3) The illustration given in condition 5 of the Appendix to the Notification has been deleted. This ensures that .....

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