TMI Blog2023 (8) TMI 699X X X X Extracts X X X X X X X X Extracts X X X X ..... the claim of the assessee on the ground that they are not eligible for the CENVAT credit since the input services have no nexus with the export service and it is unsustainable. As held by the Hon ble Telangana High Court in the case of Commissioner, Customs Central Excise, Hyderabad-IV Vs. M/s Qualcomm India Pvt. Ltd. [ 2021 (11) TMI 72 - TELANGANA HIGH COURT] Rule 14 provided that in the case of irregular availment of CENVAT credit or its utilization, the authorities under the Finance Act are empowered to recover the same from the assessee and not by denying to the grant of refund under Rule 5 of the Finance Act without there being any proceedings initiated under Rule 14 of Rules seeking to deny the refund, especially since the claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortion of the refund claim was rejected. Aggrieved by the said order, the appellant has filed Service Tax Appeal No.21477 of 2015 only in Order-in-Appeal No. 40/2015 dated 31.03.2015 and Revenue also challenged the Orders-in-Appeal No.39 to 44/2015 dated 31/03/2015 passed by Commissioner(Appeals-II), in Excise Appeal No.21522 of 2015n with regard to the findings of Commissioner( Appeal) in Para 5.8 of the impugned order wherein it is held that for the purpose of refund claim of input service credit under Rule 5 the relevant date should be the date on which the consideration has been received where the claimant is service provider and consideration paid where the claimant is service receiver. 2. The appellants have appealed against the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvices. Learned counsel also draws our attention to the finding of the Hon ble Karnataka High Court in the case of Bangalore Vs. Micro Labs Limited reported as 2011 (024) STR 0272 (Kar.) and the findings of the Hon ble Mumbai High Court in the matter of M/s Coca Cola India Pvt. Ltd. Vs. CCE, Pune reported as 2009 (242) ELT 0168 (Bom). 6. Regarding Banking and Financial Services the learned counsel submitted that during the relevant period Rule 6(5) of the CCR, 2004 was prevalent, which was subsequently omitted w.e.f. 01.04.2011. The erstwhile Rule 6(5) read as: Notwithstanding anything contained in sub-rules (1), (2) and (3), credit of the whole of service tax paid on taxable service as specified in sub clause (g), (p), (q), (r ), (v), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom outside India essentially as input services in the nature of training, teleconferencing, software licenses etc., which are essential input services for the appellant to carry out day-to-day activities and therefore are eligible for CENVAT credit. Learned counsel draws our attention to the findings of Hon ble Allahabad High Court Judgment in the case of Glyph International Limited Vs. Union of India reported as 2012 (25) STR 209 (All.). 9. The learned Counsel further submitted that the validity of CENVAT credit availed in the instant case of the Appellant has never been disputed by the learned Commissioner (Appeals) at any stage. Therefore, it is deemed that the CENVAT Credit availed by the appellant is regular. Once CENVAT Credit is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceipt of consideration as held by the Appellate Authority. Learned Counsel submitted that the issue is no longer res integra. As per the Notification No.5/2006 to Rule 5 of CENVAT Credit Rules, 2012 the relevant date from which the one year time period for filing a refund claim of CENVAT credit on input services used for export of services, shall be calculated, is the date of receipt of consideration. Further for the refund claim filed on quarterly basis, the end of the quarter in which the FIRC is received shall be the relevant date. In this regard the Learned Counsel draws our attention to the judgment of the Hon ble Andhra Pradesh High Court in the case of C.C., C.E. S.T.., Hyderabad-IV Vs. Hyundai Motor India Engg. (P) Ltd. reported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant/revenue. 15. It is not in dispute that Rule 14 of the Rules provides that in case of irregular availment of CENVAT credit or its utilization, the authorities under the Finance Act are empowered to recover the same from the assessee. It is also an admitted fact that the said provisions have not been invoked by the appellant/revenue against the respondent/ assessee. 16. As the availment of CENVAT credit by the appellant under Rule 3 of the Rules is not called in question, the denial to grant refund under Rule 5 of the Rules without there being any proceedings initiated under Rule 14 of the Rules by seeking to deny the refund on the ground of the respondent/assessee availed CENVAT credit on input services, which according to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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