TMI Blog2023 (9) TMI 566X X X X Extracts X X X X X X X X Extracts X X X X ..... , the objection regarding the eligibility of credit cannot be raised at the time of filing of the refund claim, to deny the refund claim. Prior to 1.4.2011 the 'input service' definition in Rule 2(l) of the Cenvat Credit Rules, 2004 was very wide as it was an inclusive definition and covered the expression activities relating to business . This covers all such 'input services' used by the Respondent in providing their output services. Accordingly, we hold that there is no infirmity in the impugned order passed by the Commissioner (Appeals) allowing the refund. The impugned order has rightly allowed the appeal filed by the Respondent - Appeal filed by appellant is rejected. - HON BLE MR. ASHOK JINDAL , MEMBER ( JUDICIAL ) And HON BLE MR. K. ANPAZHAKAN MEMBER ( TECHNICAL ) Shri S. S. Chattopadhyay , Authorized Representative for the Appellant Shri R. Dakshina Murthy , Advocate for the Respondent ORDER PER K. ANPAZHAKAN : The present appeal has been filed against the impugned order dated 21.03.2012 passed by the Ld. Commissioner (Appeals), wherein he has allowed the appeal filed by the Respondent. Aggrieved against the said or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eals), who vide his O-i-A dated 30.07.2009 remanded the case to the original authority to revisit the matter and pass a clear an order afresh. The Assistant Commissioner pursuant to above appellate order, passed De-novo Order-in-Original dated .22.3.2011 sanctioning partial refund of Rs.2,78,649 on two input services viz., Management, Maintenance or Repair Service and Telecommunication Service and rejected the balance refund claim of Rs.88,09,859. The Respondent being aggrieved by the above De-novo Order dt.22.3.2011, filed appeal before the Commissioner (Appeals). The Ld. Commissioner (Appeals) allowed the appeal filed by the Respondent vide Order-in-Appeal dated 21.3.2012 (impugned order). Being aggrieved against the impugned order, the Department. has filed the present appeal before this Tribunal. 5. In their grounds of appeals, the Appellant(Department) stated that the adjudicating authority has examined the admissibility or inadmissibility of the refund of Cenvat credit claimed by the Respondent in respect of the thirteen services and observed that only two services i.e. the Management, Maintenance or Repair services and Telecommunication Service were related to development ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther, the Board vide letter No. D.O.F. No. 334/1/2010-TRU dated 26.02.2010 has also clarified that these amendments are made applicable retrospectively with effect from 14.03.2006. 8. The Respondent submits that pursuant to the impugned order the Assistant Commissioner of Central Excise passed a De-novo Order dt.30.8.2012 wherein the refund amount of Rs.88,09,859 was sanctioned. Hence the Revenue s appeal is infructuous and should be dismissed in limine. The refund sanction order dt.30.8.2012 passed by the Assistant commissioner has been accepted by the department and not challenged in appeal and no notice was issued to recover it as wrongly sanctioned refund as per section 11A of the Central Excise Act,1944. The Respondent placed reliance on the following judicial decisions in support of the above contention. a. CST Vs.Yokogawa IA Technologies India P.Ltd 2011 (24) STR 465 (T). b. CCE Vs.Tata Steel Ltd, 2020 TIOL-1058-CESTAT-KOL. 9. The Respondent submits that the Department could not have raked up the eligibility of Cenvat credit in the refund application filed by them.. The Respondent relied upon the following decisions in support of their contention: a. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of appeal by the Appellant. Hence, this point cannot be raised at this stage. Accordingly, we would examine the appeal on merits on the basis of the submissions made by both the sides. 14. We observe that in the impugned order the Appellate Authority has given a specific finding as to how the Respondents were eligible for the refund. The relevant pars in the impugned order are reproduced below: 9. I have perused the impugned order and the submissions made by the appellant. Claim of refund for quarter ending January, 2008 to March, 2008 was filed on 08.02.2008. The same has moreover been rejected by the lower authority on the ground that input services credit availed by the appellant did not qualify as input services for development of software in terms of rule 5 of the said rules, read with Notification No. 5/2006-CE (NT), dated 14.03.2006, issued thereunder, as these said services were not used in providing output service. Aggrieved by the impugned order of the Assistant Commissioner, the appellant had filed an appeal before the Commissioner (Appeals). The Commissioner (Appeals), vide order-iExcise appeal No. 58/ST/BBSR-I/2009, dated 30.07.2009, had remanded the case to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Cenvat credit on the input services used by them in providing the output services. The Department has not raised any objection at the time of availing and utilizing the credit. The decisions relied upon by the Respondent mentioned in Para 8 supra supports their contention that the eligibility of Cenvat credit cannot be questioned at the time of filing of the refund when it was not questioned when the same was availed and utilized by them. Accordingly, we hold that when no objection was raised at the time of availing and utilizing the credit, the objection regarding the eligibility of credit cannot be raised at the time of filing of the refund claim, to deny the refund claim. We find that Board Circular No.120/01/2010 - ST dated 19.01.2010, supports this view. In the said Circular, in Para 3.1.1 it has been clarified that as regards the extent of nexus between the inputs/input services and the export goods/services, it must be borne in mind that the purpose is to refund the credit that has already been taken. There cannot be different yardsticks for establishing the nexus for taking of credit and for refund of credit. 16. We observe that prior to 1.4.2011 the 'input service ..... X X X X Extracts X X X X X X X X Extracts X X X X
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