TMI Blog2018 (5) TMI 400X X X X Extracts X X X X X X X X Extracts X X X X ..... in balance at the end of the quarter or at the time of filing of the refund whichever is less - As per the fact narrated by the Ld. Counsel the refund claim amount is lesser, both the amount and cenvat credit balance at the end of the quarter as well as cenvat credit balance at the time of filing the refund and therefore the condition envisaged under clause (g) of para 2 of the notification is scrupulously complied with. The only amount which can be reduced is the amount which is reversed in terms of Sub-rule (5C) of Rule 3 during the relevant period. Therefore no amount which was utilized for payment of service tax in respect of domestic provision of service from cenvat amount is required to be reversed as per formula. Whether the Commissioner was right in allowing the cenvat credit on certain input services which were rejected, by the lower authorities on various grounds? - Held that: - the issue of admissibility of input service was raised in disposal of the refund claim filed under Rule 5 of the Cenvat Credit Rules. There cannot be two yardsticks i.e. one for allowing the credit and other for deciding the refund and therefore the refund claim cannot be rejected on the gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned from the date of receipt of foreign exchange and not from the date of invoices or from the date of export of service, therefore this issue is already settled. 5. As regard the computation of eligible refund. He submits that the refund is to be computed as per the formula provided in Rule 5 of Cenvat Credit Rules,2004. The notification issued under the said Rule namely Notification No. 27/2012-CE(NT) provided at para 2 (g) stipulates that the refund amount shall not be more than the cenvat credit balance at the end of the quarter or at the time of filing of refund claim. The respondent has considered the cenvat credit balance on the last date of quarter which was ₹ 34,47,125/- whereas the cenvat credit available on the date of filing of the refund was ₹ 68,53,677/-. Since the respondent has claimed refund of ₹ 34,05,172/- on the basis of the formula provide in Rule 5 of Cenvat Credit Rule, 2004 which is less than both the amounts mentioned above. They have correctly complied with the above prescription of law. The Assistant Commissioner while rejecting the claim of respondent has held that respondent ought to have considered the cenvat credit availed during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave carefully considered the submissions made by both sides and perused the records. We find that in both the cases, the period involved is after 1.7.2012. Prior to 1.7.2012, the definition of export of service under Rule 5 was as under: - export service means the service which is provided as per provision of Export of Service Rules, 2005 whether the payment is received or not. However, from 1.7.2012, the aforesaid definition of export service under Rule 5 was amended. The amended definition reads as under: - export service means the service which is provided as per Rule 6A of the Service Tax Rules, 1994. Since all the relevant claims are pertaining to the period after 1.7.2012 only the amended definition of export service is applicable. Rule 6A of Service Tax Rules, 1994 are read as under: - RULE [6A. Export of services. - (1) The provision of any service provided or agreed to be provided shall be treated as export of service when, - (a) the provider of service is located in the taxable territory, (b) the recipient of service is located outside India, (c) the service is not a service specified in the section 66D of the Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )the amount of refund claimed shall not be more than the amount lying in balance at the end or quarter for which refund claim is being made or at the time of filing of the refund claim, whichever is less. (h)..................... (i).................... From the plain reading of the above clause (g) it is crystal clear that amount of refund claimed by the respondent shall not be more than the amount lying in balance at the end of the quarter or at the time of filing of the refund whichever is less. As per the fact narrated by the Ld. Counsel the refund claim amount is lesser, both the amount and cenvat credit balance at the end of the quarter as well as cenvat credit balance at the time of filing the refund and therefore the condition envisaged under clause (g) of para 2 of the notification is scrupulously complied with. It is also observed that in formula given under Rule 5 is relevant which is reproduced below: 5. Refund of CENVAT Credit. - (1)A manufacturer who clears a final product or an intermediate product for export without payment of duty under bond or letter of undertaking, or a service provider who provides an output service which is exported without pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount is required to be reversed as per formula. The net sum will be the centvat credit attributable to export only. Therefore the formula itself taken care to reduce the element of cenvat credit attributable to the service provided in the domestic market, therefore the proposal of the revenue is based on presumption and assumption which has no authority therefore this proposal is also rejected and refund claim cannot be disputed on this count. 9. As regard the issue of admissibility of certain services, I find that the issue of admissibility of input service was raised in disposal of the refund claim filed under Rule 5 of the Cenvat Credit Rules. There cannot be two yardsticks i.e. one for allowing the credit and other for deciding the refund and therefore the refund claim cannot be rejected on the ground of admissibility of the input service at the stage of processing of refund claim. This was held by the Tribunal in the following cases : (i) Commissioner of Service Tax, Delhi v. Convergys India Pvt. Ltd. - 2009 (16) S.T.R. 198 (Tri.-Del.) (ii) Morgan Stanley Advantage Services Ltd. Versus Commr. Of S.T., Mumbai-II 2015 (37) S.T.R. 639 (Tri. - Mumbai) Thus, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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