TMI Blog2022 (3) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... cisable final product and service tax on the output service. Where the credit availed or utilized in a wrongful manner, it has been mandated in Rule 14 ibid for recovery of the credit so availed/utilized from the manufacturer or service provider as the case may be. It has further been mandated that for effecting recovery of irregularly availed or utilized cenvat credit, the provisions of Section11A of the Central Excise Act, 1994 or Section 73 of the Finance Act, 1994, as the case may be, shall apply mutatis mutandis - since Rule 5 ibid itself is a self contained provision, designed with the sole objective of consideration of the refund application for the limited purpose of exportation of goods/services, the department is only confined to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices used/utilized for providing the output service. During the disputed period, since the appellant had exported the output taxable services to the overseas entities, they were not in a position to utilize the Cenvat Credit available in the books of accounts. Thus, the appellant had filed the refund application under Rule 5 of the Cenvat Credit Rules, 2004 claiming refund of service tax paid on the input services. While adjudicating the refund application, the original authority had sanctioned the benefit of refund in respect of some of the input services and denied the benefit in respect of some other services on the ground that those services had no nexus wth the output service exported by the appellant. The adjudication order dated 06.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exus with the output service exported by the appellant. He further submitted that since taking of cenvat credit itself is not permissible under the statute, claiming the refund benefit of service tax paid on the input services cannot be considered for grant of refund by the department. Further he also stated that show cause proceedings have also been initiated by the department, seeking denial of the refund benefit to the appellant on the ground of non-establishment of nexus between the disputed service with the output service exported by them. He has relied upon the following judgments delivered by the judicial forum to strengthen the case of Revenue: (i) Commissioner of C.Ex., Nagpur Vs. Manikgarh Cement 2010 (20) S.T.R. 456 (Bom.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in Rule 5 ibid. Sanction of refund under the said statutory provision is subject to adherence of the procedures, conditions and limitations as may be specified by the CBEC by way of notification in the Official Gazette. The said rule nowhere specified that while adjudicating the refund application, the department should examine the nexus theory as provided under Rule 3 read with Rule 14 ibid. In other words, since Rule 5 ibid itself is a self contained provision, designed with the sole objective of consideration of the refund application for the limited purpose of exportation of goods/services, the department is only confined to look into the aspect, whether the formula prescribed there under has been duly complied with by the claimant or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d a separate show cause notice and after carrying out the process of adjudication, order should have been passed holding that whether the said input services are admissible input services or not. Thereafter a decision on refund should have been taken. However, without carrying out the process of adjudication, he straightaway rejected the refund claim, which is not legal and proper. Further, on going through the nature of the service, I find that all these services in question are directly used by the service provider i.e. the appellant. In various judgments cited by the Learned Counsel, this Tribunal and various High Courts consistently held that all these services are input service for providing the output service. Hence the Cenvat credit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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