TMI Blog2021 (9) TMI 979X X X X Extracts X X X X X X X X Extracts X X X X ..... f goods and services to the total turnover, during the period under consideration, of the Net CENVAT credit taken during that period. Undisputedly in the refund proceedings under Rule 5 of CENVAT Credit Rules, 2004 as amended any such attempt whereby credit availed during the period under consideration is sought to be denied or varied, is not permissible. If the quantum of the Cenvat Credit is sought to be varied, by holding that certain services do not qualify as input services then the same could have been done by invoking the provisions of Rule 14 of the CENVAT Credit Rules, 2004. Since the Commissioner (Appeals) has by the impugned order held the refund to be admissible, to the extent of CENVAT Credit held admissible by him subjec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity should examine the same before considering the sanction of refund claim to the appellant. Accordingly the impugned order of the lower adjudicating authority need partial modification to that extent and are modified. In view of the above, the impugned order is partially modified and the appeal filed by the appellant is partially allowed as per above terms. 2.1 The appellant is engaged in export of service and was availing the benefit of CENVAT credit of duty and service tax paid on various input services namely- renting of immovable property service. Internet Telecommunication services Membership and subscription services Market research services Conveyance services Courier Services Banking Services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor Services (para 7.5) Courier Services (para 7.7) Maintenance and Repair Services (para 7.10) Market Research Agency Service (para 7.11) 4.3 Rule 5 of the CENVAT Credit Rules, 2004 was amended by the Notification No 18/2012 -CX (NT) dated 07.03.2012 to provide as under. 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 payment of service tax, shall be allowed refund of CENVAT credit as determined by the following formula subject to procedure, safeguards, conditions and limitations, as may be specified by the Board ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her services, during the relevant period; and (c) all inputs removed as such under sub-rule (5) of rule 3 against an invoice, during the period for which the claim is filed. (2) This rule shall apply to exports made on or after the 1 st April, 2012: Provided that the refund may be claimed under this rule, as existing, prior to the commencement of the CENVAT Credit (Third Amendment) Rules, 2012, within a period of one year from such commencement: Provided further that no refund of credit shall be allowed if the manufacturer or provider of output service avails of drawback allowed under the Customs and Central Excise Duties and Service Tax Drawback Rules, 1995, or claims rebate of duty under the Central Excise Rules, 2002, in respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeal)/ Adjudicating Authority has misdirected himself by undertaking such exercise while adjudging the refund claim filed in terms of Rule 5. In the case of Accelya Kale Solutions Ltd. Vs. Commissioner of Central Goods Service Tax and Central Excise, Mumbai [2018-TIOL2452- CESTAT-MUM]. tribunal observed, as under:- 3. Rule 5 of Cenvat Credit Rules, 2004, was substituted vide Notification No. 18/2012-CE (NT) dated 17.03.2012, with effect from 01.04.2012. The said substituted rule has prescribed the formula for claiming refund of service tax by the service provider. Under such amended rule in vogue, there is no requirement of satisfying the nexus between the input services and the output service provided by the service provider. Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t there cannot be different yardstick for establishing nexus for taking of credit and for refund of credit, is appropriate. Otherwise also, we find the issue stands decided by the many decisions of the Tribunal. One such reference can be made to the Tribunal decision in the case of Barclay Global Service Centre Pvt. Ltd. Ors. V. Commissioner of Central Excise Service tax, Noida [2019-TIOL-1714-CESTATALL]. It stands held in the said decision that as no objection was raised by the Revenue at the time of availing the credit, such objection cannot be raised at the time of deciding the refund claim in terms of provision of Rule 5. 4.6 In view of the discussions as above I am not in position to sustain the impugned order to the extent ind ..... X X X X Extracts X X X X X X X X Extracts X X X X
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