TMI Blog2016 (12) TMI 1524X X X X Extracts X X X X X X X X Extracts X X X X ..... a period prior to the quarter/month for which the refund has been claimed is eligible for refund or not? This specific issue has been considered at length and decided in favor of the appellant in the case of Sai Advantium Pharma Ltd.[2015 (3) TMI 1230 - CESTAT BANGALORE], where it was held that Once credit was admissible and unless there was no nexus between the output service exported and input services were used when credit was taken, the refund of the same also could not have been denied since the substantive ground of taking CENVAT credit in the first place being correct would lead to the obvious conclusion that ultimately if it gets accumulated the refund has to be sanctioned - rejection of the refund claim filed under Notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ince software services were not taxable to service tax during the relevant time, the refund was held to be inadmissible. (ii) The appellant has failed to file claim for refund on quarterly or monthly basis for the refund of unutilized cenvat credit, as required under Notification No. 5/2006. (iii) The appellant has availed the credit on input services during the period April 2006 to March 2007 and has claimed that these are co-relatable to the services exported during September 2007. The lower authorities have rejected the claim by taking the view that the input services for which credit has been availed are not connected to the services exported and no documentary evidence to this extent has been submitted. 3. The present appeal h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring the relevant period. The Notification No. 5/2006-CE (N.T.) dated 14.03.2006 which has been issued under Rule 5 of the Cenvat Credit Rules 2004 specifically allows refund of cenvat credit availed on inputs or input services which have been used for providing output services which have been exported. There is no condition in the Notification which prescribes that the refund will be allowable only in cases where the output services exported is liable for payment of service tax. Hence we find that such a view taken by the authorities below is without any basis. In any case the Tribunal in the case of KPIT Cummins Infosystems Ltd. Vs. CCE reported in [2013 (32) S.T.R. 356 (Tri.)] held that cenvat credit for export of exempted service would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his brings us to the question whether credit availed for a period prior to the quarter/month for which the refund has been claimed is eligible for refund or not? We find that this specific issue has been considered at length and decided in favour of the appellant in the Final Order Nos. 20824-20834/2015 dated 23.03.2015 in the case of Sai Advantium Pharma Ltd. For ready reference we give below the relevant para of the order of the Tribunal in the case of Sai Advantium Pharma Ltd. 5. We find that according to the provisions of CENVAT Credit Rules during the relevant time, there was no time prescribed for taking the credit. In the absence of time limit prescribed, there are several decisions of the Tribunal that credit could not have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for providing output services which have been exported instead of used in providing output service also supports the claim of the appellant. Moreover according to Notification No. 7/2010, according to the learned counsel, it is provided that credit of input services need not be taken during the period for which refund has been claimed. The above discussion would show that credit is admissible and refund is also admissible. Moreover in the Interim Order referred to hereinabove in para 6.1., this issue was considered and we find that is also relevant. 6. In line with the above discussion, we find that the rejection of the refund claim filed under Notification 5/2006-CE (NT) is without justification. Consequently the impugned order is se ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
