TMI Blog2019 (10) TMI 1038X X X X Extracts X X X X X X X X Extracts X X X X ..... hich in view of the decision of the Hon ble Supreme Court in the case of Toyo Engineering India Ltd. [ 2006 (8) TMI 184 - SUPREME COURT ] is not tenable in law. Further, it is not in dispute that the services availed by the appellant falls in the definition of input service and the said service was availed and service tax was paid and the said service was utilized by the appellant and once this is admitted and undisputed, then, in my view CENVAT credit cannot be denied. Further, the Commissioner (A) himself in para 10 has admitted that certain input services were received by Biakampady Unit and invoices were raised in their name and it appears that Biakampady Unit is entitled to CENVAT credit on the same. Once this finding is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered as ISD for their plants at Manipal and Biakampady, no invoices were issued by them in order to avail credit by above mentioned Branch units. On pointing out by the Auditors, the appellant initially paid back such disputed credit along with interest and penalty. However, later on filed the refund claim for ₹ 16,47,693/- on 16.3.2018 for refund of CENVAT credit wrongly reversed by them in response to audit observations. After examining the said refund claim, a show-cause notice was issued to the appellant dated 5.6.2018 for rejection of the refund claim on the ground that they should have availed credit only on the strength of invoices issued by the ISD as pointed out by the audit. The Asst. Commissioner, Mangalore vide Order-in-Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt relied upon the following decisions: Commissioner of Central Excise, Mumbai vs. Toyo Engineering India Ltd.: 2006 (201) ELT 513 (SC) Commissioner of Central Excise, Nagpur vs. Ballarpur Industries Ltd.: 2007 (215) ELT 489 (SC) 4.1 The second submission of the learned counsel is that the impugned order rejecting the claim on the ground that CENVAT credit in respect of which refund claim was sought needs examination to ascertain the eligibility of such credit is incorrect. The eligibility of CENVAT credit were not questioned at any stage and no show-cause notice has been issued under Rule 14 of the CENVAT Credit Rules proposing to recover such credit. He further submitted that once the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner (A) has admitted and has observed in para 10, therefore, the Commissioner (A) cannot reject the refund on eligibility issue. 4.3 Further, learned counsel submits that there is no provision under the Finance Act, 1994/ CENVAT Credit Rules, 2004 which mandates that once an assessee is registered as an Input Service Distributor then the manufacturing unit / plant cannot avail credit on the basis of invoices/challan which are valid documents for availment under Rule 9(1)(f) of CENVAT Credit Rules, 2004. His further submission is that even if it is admitted that appellant has availed CENVAT credit on the strength of incorrect/incomplete document, it is only a procedural lapse and on such procedural lapse substanti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme Court in the case of Toyo Engineering India Ltd. cited supra is not tenable in law. Further, it has been consistently held by the Tribunal in the decisions cited supra that if the eligibility of credit is not questioned by issuance of show-cause notice under Rule 14 of CENVAT Credit Rules, then at the time of refund, the eligibility cannot be questioned. Therefore, the question of eligibility by the Commissioner (A) at the appellate stage is not sustainable in law. Further, it is not in dispute that the services availed by the appellant falls in the definition of input service and the said service was availed and service tax was paid and the said service was utilized by the appellant and once this is admitted and undisputed, then, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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