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TMI Blog2018 (2) TMI 1322X X X X Extracts X X X X X X X X Extracts X X X X ..... he facts in both the appeals are identical and therefore, they are being disposed of by a common order. 2. Facts of the case are that the appellant is engaged in the activity of erection, commissioning and installation of various projects outside India under composite contract. The appellant has also undertaken an contract for supply of services against various separate contracts. The appellant has maintained separate account of inputs used for providing their composite contract as well as of power supply. The appellant is not availing any proportionate cenvat credit on common inputs services, proportionally attributable to their composite contract executed outside India. After completion of their contract, the appellant filed refund claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to be set aside to the extent of rejecting their claim partially. 4. On the other hand, learned AR reiterated the finding of the impugned order and submitted that as the learned Commissioner (Appeals) has considered the submissions made by the appellant and after taking note of the finding against the appellant, the calculation of the refund claim was made under Rule 5 of the Cenvat Credit Rules, 2004. 5. Heard the parties and considered the submissions. 6. On consideration of submissions of both the sides, the facts are to be examined whether the appellant has availed proportionate cenvat credit attributable to their composite contract, on inputs as well as input service, and has not availed any cenvat credit on inputs and common cenv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imed as refund I am afraid that such method of computing has any sanction under Rule 5 or the Notification No. OS/2006-CE(N.T). The claimant has not provided any authority for such method 0/ computation adopted. In view a/this, I find that no such bifurcation is permissible. Moreover, the claimant has not provided any supporting documents on the basis of which such bifurcation is done. In view of this I reject the method of computation adopted by the claimant ...... " From the above it can be seen that the adjudicating authority has agreed to the fact that the appellant has taken proportional credit of the common input services and has claimed refund in respect of those input services which has been used exclusively in the provision of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e which is intended for use in the manufacture of dutiable goods or in providing output service on which service tax is payable: The relevant clauses of the said rules are reproduced here as under: 5. Refund of CENVAT credit. - . Where any input or input service is used in the final products which is cleared for export under bond or letter of undertaking, as the case may be, or used in the lntehmediate products cleared for export, or used in providing output service which is exported! the CENVAT credit in respect of the input or input service so used shall be allowed to be utilized by the manufacturer or provider of output service towards payment of, (i) duty of excise on any final products cleared for home consumption or for export on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above two rules, it becomes abundantly clear that as per Rule 5 the appellant was eligible to take credit of the input services which have been utilized during the course of provision of output services which are eventually exported and similarly as per the provision of Rule 6 above, the appellant could have utilized/availed the credit only to the extent or Oil that quantity which was actually used for the 'provision of such exported output services. I therefore, feel that the method of computation as devised by the adjudicating authority is not in commensurate with the above rules especially when she herself has accepted this fact that only proportionate benefit i.e. refund of those input .services has been claimed which are used e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by them. 8. With regard to the appeal No.ST/55679/2013, certain additional issues has been addressed by the appellant with regard to availing of draw back. Infact, in the earlier round of litigation, the learned Commissioner has allowed their refund claim. In earlier round of litigation, the learned Commissioner himself has held that availment of draw back is not influenced by the claim of refund of service tax under Rule 5 of Cenvat Credit Rules, 2004. 9. For denial of cenvat credit on CHA and CFA services the refund claim was rejected on the ground that cenvat credit on input service has been availed by the appellant on the basis of invoices which were not issued in the name of their registered premises. 10. We find that in earlier r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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