TMI Blog2018 (2) TMI 1322X X X X Extracts X X X X X X X X Extracts X X X X ..... ettled by the various judicial pronouncement namely in the case of National Engineering Ltd. vs CCE [2013 (305) ELT 551] wherein it has been held that as not in dispute the appellant has received the service and used for export of goods, therefore, the refund claim cannot be denied - refund cannot be denied. Appeal allowed by way of remand. - Service Tax Appeal No.55678 -55679 of 2013 - Final Order No.50589-50590/2018 - Dated:- 6-2-2018 - Shri Ashok Jindal, Member (Judicial) And Mr. B Ravichandran, Member (Technical) Shri Tarun Gulati, Shri Kishore Kunal, Shri Pranav Bansal, Advocates for the Appellants Shri Amreesh Jain, DR for the Respondent ORDER Per: Ashok Jindal The appellant is in appeal against the impugned order where refund claim filed by them have been reduced on the premise that the value of sub contract of goods by taking into consideration while calculating their refund claim. The 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. 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 cenvat credit attributable to input service for supply contract executed by them. If these are the facts, then, the said issue has been examined by the learned Commissioner (Appeals) in the order dated 20.4.2017 and allowed the refund claim as claimed by the appellant wherein he has observed as under: 8. I find that the original authority has added the amount of Rs.J07,72,55,735/- for the period from January, 2010 to March 2010, ₹ 179,13,87,953/- for the period from April, 2010 to March, 2011, Rs,15,22,76,843/-for the period tram April,2011 to June,2011 in the total turnover under the observation that thesaid value represent the value of 'sold bought out items' which have been exported by the appellant. It has also been observed that the appellant has included the said turnover in 'total turnover' while computing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es which is exported, CENVAT Credit against the input or input services so used will be allowed and likewise Rule 6 of the rules ibid provides that where a manufacturer or provider of output service avails of CENVAT credit in respect of any inputs or input services and manufactures such final products or provides such output service which are chargeable to duty or tax as well as exempted goods or services, he can maintain separate accounts and take CENVAT credit only on that quantity of input or input service 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, I am of the opinion that as per point no. 5 of Notification No. 5/2006-CE~NT) which was applicable at the relevant point of time and is reproduced here under, the mode of computation adopted by the appellant is correct because the adjudicating authority has herself stated that the appellant has proportioned the credit of the common input services by dividing it with the value of total turnover (including the trading turnover) and multiplying it with the Export Turnover in as much as the fact that the same is in absolute corisonance to the given formula: 5. The refund 9f unutilised input service credit will be restricted to the extent of the ratio of export turnover to the total turnover for the given period to which the claim relates i.e. Maximum refund Total CENVAT credit taken on input services during the given period x export turnover + Total turnover. Hence, the amount of CENVAT Credit reduced by the adjudicating authority by not accepting the method of computation adopted by the appellant needs to be included in the total CENYAT Credit available for the purpose of calculation of refund. 7. These facts are to be examined by the adjudicating authority. In tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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