TMI Blog2017 (7) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... already availed - In the instant case, the appellant had claimed refund claim and the same needs to be examined in terms of Rule 5 of Cenvat Credit Rules read with notification issued there under. It is seen that the lower authorities has not deal with this issue. It is not open to Revenue to examine the admissibility of Cenvat Credit while adjudicating the admissibility of refund under Rule 5 read with Notification issued there under. The matter is remanded to the original adjudicating authority to decide the issue solely on the basis of Rule 5 of Cenvat Credit Rules read with notification issued there under - appeal allowed by way of remand. - ST/86569 to 86580, 86717 & 86718/16 - A/87663-87676/17/SMB - Dated:- 1-6-2017 - Mr. Raj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gradation that is required for the seafarers on board the vessels managed by KLSM, Japan. It was also provided that all functions related to the training shall be outsourced to another suitably equipped company in India as per discretion of KLSM, India but always conforming to the requirements of KLSM, Japan. I find from the employment contract (sample copy) submitted by the assessee that the manning agent was K Steamship Agencies Pvt. Ltd., which appointed Mr.Rana Dinesh for KLSM, Tokyo as Second Assistant Engineer and not by KLSM, India. I find from the inter-company services agreement between the assessee and K Line Maritime Academy (India) the latter i.e. KLMA India has been appointed in respect of all matters relating to the training ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eligibility to the Cenvat credit itself. The impugned order reads as follows: 11.8 I therefore agree with the view taken by the department that the said service lacks nexus with the exported service of ship management and hence hold the same not eligible for credit per se. Reliance placed by the department on the cases of Maruti Suzuki Ltd. - 2009 (240) ELT 641 (SC) and Manikgarh Cement Ltd. - 2010 (20) STR 456 (Bom) support the said views of the department. The case laws of Kijiji (I) Pvt. Ltd. and Convergys India P Ltd. relied upon by the assessee in their favour do not stand against the said case laws of the department. I therefore, uphold the views of the department and hold that the credit taken in respect of Management, trai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g ship management service to KLSM, Japan are held eligible to credit under CCR. I therefore have no option but to remit the case back to the lower authority for examination of the admissibility to credit and for sanction of consequential refund, if any, in respect of other input services under Rule 5 of CCR. It is also made clear that the assessee shall be afforded proper hearings before taking a final decision in the matter. It is seen that the eligibility to Cenvat Credit cannot be challenged without issue of show-cause notice under Cenvat Credit Rules. For the purpose of recovery of Cenvat Credit wrongly taken or erroneously refunded. Rule 14 has been provided in Cenvat Credit Rules which reads as under: Rule 14. Recovery of CE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undertaking and (ii) input and input services used in providing output services, which has been exported without payment of service tax, subject to conditions and limitations set out in the Notification No.5/2006. In these circumstances, the only test of admissibility of refund can be the Rule 5 and notification issued there under. I find that the impugned order instead of dealing with this rule and notification issued there under, deals with the admissibility of credit itself. It is seen that for examining the admissibility of credit a separate procedure have been provided under Rule 14 of he Cenvat Credit Rules. It is not open to Revenue to examine the admissibility of Cenvat Credit while adjudicating the admissibility of refund under Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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