TMI Blog2022 (11) TMI 1190X X X X Extracts X X X X X X X X Extracts X X X X ..... its utilization and refund are different aspects dealt with under CCR, 2004 - Admittedly since the availment of credit has not been questioned by the department herein by issuing show cause notice in terms of Rule 14 ibid, the refund benefit cannot be denied on the ground of non-establishment of nexus between input and the output services. In the matter of M/S BNP PARIBAS INDIA SOLUTION PVT LTD VERSUS COMMISSIONER OF CGST, MUMBAI EAST [ 2021 (12) TMI 676 - CESTAT MUMBAI] this Tribunal while allowing the appeal of the assessee therein allowed the refund claim u/s. 5 ibid by holding that since the provisions of Rule 14 ibid have not been invoked, the refund of Cenvat credit as claimed by the Appellant under Rule 5 ibid cannot be denied. Although, as submitted by learned counsel, the mails and sample copy of invoices were produced by them before the learned commissioner in support of their submissions but simply the claim has been rejected by merely recording that no tangible evidence has been produced. The aforesaid mails and invoices, which have been produced here also, are sufficient to establish the nexus. Law does not require one to one correlation unless the availment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by the Appellant before the 1 st Appellate Authority, the learned Commissioner (Appeals) vide common impugned order dated 25.6.2019 partly modified the Adjudicating Orders and confirmed the rejection of refund claims on Business Travel Service, Membership of club or Association, Event Management Service and Business Support Services. 4. Learned counsel for the appellant submits that the refund has been rejected without issuing any show cause notice to the appellants. He further submits that after the amendment in Rule 5 ibid on 1.4.2012 there is no requirement of establishing nexus between input and output services for claiming refund. According to learned counsel Business travel service consisting of expenses of air travel and travel agent s service, have been availed as the appellant s employee have to travel to various locations in India and abroad for the growth of its organization, therefore as the expenses for travel or Business Travel Service are for facilitating the objectives and growth of the company the same has nexus with the output service. According to him the mails, to show that the travelling are for business purpose only, were also placed on record befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Rule 5. It is well settled principle that availment of Cenvat credit, its utilization and refund are different aspects dealt with under CCR, 2004. Rule 5 provides for any refund of Cenvat credit and the said Rule nowhere provides for determination about the correctness of availment of Cenvat credit. Its only Rule 14 ibid which provides for recovery of irregularly availed Cenvat credit. Admittedly since the availment of credit has not been questioned by the department herein by issuing show cause notice in terms of Rule 14 ibid, the refund benefit cannot be denied on the ground of non-establishment of nexus between input and the output services. 6. In the matter of BNP Paribas India Solution Pvt. Ltd. vs. Commr. CGST, Mumbai East; 2022 (58) G.S.T.L. 539 (Tri.- Mumbai)this Tribunal while allowing the appeal of the assessee therein allowed the refund claim u/s. 5 ibid by holding that since the provisions of Rule 14 ibid have not been invoked, the refund of Cenvat credit as claimed by the Appellant under Rule 5 ibid cannot be denied. The relevant paragraphs of the said order are reproduced hereunder:- 5. I have heard Learned Counsel for the Appellant and Learned Authorised R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per the formula prescribed therein. Considering such amendment of Rule 5, the Tax Research Unit of Department of Revenue vide circular dated 16-3-2012 has clarified that the new scheme under Rule 5 does not require the kind of correlation that is needed at present between exports and input services used in such exports. Since the amended rule w.e.f. 1-4-2012 does not provide for establishment of nexus between the input and the output services and the benefit of refund is to be extended only on compliance of the formula prescribed therein, I am of the view that denial of refund benefit on the ground of non-establishment of nexus cannot be sustained, I find that this Tribunal in the case of Maersk Global Services Centres (I) Pvt. Ltd. (supra) has extended the refund benefit on the ground that establishment of nexus between the input and the output services cannot be insisted upon. The relevant paragraphs in the said decision is extracted hereinbelow: 7. In this case, the department has not disputed the fact regarding export of output service by the appellant. The dispute raised in the present case were in context with non-establishment of nexus between the input and output se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it has denied the refund benefit on the ground of non-establishment of nexus between the input and output services, is set aside and the appeal is allowed in favour of the appellant. There is no dispute that the aforesaid decision of this Tribunal in appellants own case covered both pre-and post-amendment period and also the services which are in issue herein. So far as the decision in the matter of Maersk Global (supra) is concerned, I am afraid that the Learned Authorised Representative is not correct in his submission that the said decision pertains to pre-amendment period. Similarly, while interpreting Rule 5 this Tribunal in the matter of M/s. Cross Tab Marketing Service Pvt. Ltd. v. C.C. GST, Mumbai East; reported in 2021-VIL-466-CESTAT-MUMST = 2021 (55) G.S.T.L. 29 (Tri. - Mumbai) vide order dated 17-9-2021 held that the amended Rule 5 ibid does not require establishment of any nexus between input and export services. The rule only provides that the admissible refund will be proportional to the ratio of export turnover of goods and services to the total turnover, during the period under consideration and the net Cenvat credit taken during that period. Indisputably, in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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