2009 (9) TMI 306 - AT - Service Tax

Tribunal grants refund of Service Tax credit to EOU pre-2006, citing Rule 5 interpretation

Glittek Granites Ltd. Versus Commissioner of Customs, Bangalore

The Tribunal allowed the appeal, holding that the denial of the refund of Service Tax credit on input services for the period prior to 14-3-2006 was not ... Cenvat Credit- Notification No. 5/2006-CE(NT)- The appellant is an EOU engaged in the manufacture and export of granite slabs and tiles. They had filed a refund claim under rule 5 of the Cenvat Credit Rules, 2004 for refund of unutilized Cenvat Credit of Service Tax paid under the Service Tax Act, 1994. The said refund claim was rejected by the adjudicating authority on the grounds that refund of Service Tax paid on input service is admissible only from 14-3-2006 as provided under Notification No. 5/2006-CE (NT) and not for the period prior to it. The Commissioner (Appeals upheld the Order-in-Original. In the light of the decision of Fibres & Fabrics International (P.) Ltd. v. CC 2009 -TMI - 33501 - CESTAT BANGLORE, held that the order of Commissioner (Appeals) liable to set-aside and appeal is allowed. Issues:Claim of refund of Service Tax credit on input services for the period prior to 14-3-2006 under Cenvat Credit Rules, 2004.Analysis:Issue 1: Claim of refund of Service Tax credit on input services for the period prior to 14-3-2006 under Cenvat Credit Rules, 2004.The appellant, an EOU engaged in manufacturing and exporting granite slabs and tiles, filed a refund claim for unutilized Cenvat Credit of Service Tax paid on input services. The claim was rejected by the adjudicating authority and the Commissioner (Appeals) on the grounds that the refund of Service Tax paid on input service was only admissible from 14-3-2006 as per Notification No. 5/2006-CE (NT). The appellant contended that the denial of the refund was based solely on the availability of the benefit from 14-3-2006 onwards. The appellant cited precedents like Fibres & Fabrics International (P.) Ltd. and Nisha Designs to support their claim.The Commissioner (Appeals) upheld the Order-in-Original by highlighting that prior to 14-3-2006, there was no specific Notification for refund of input services credit. The Commissioner emphasized that until the issuance of the Notification on 14-3-2006, the benefit could not accrue to the appellant. However, the appellant argued that Rule 5 of Cenvat Credit Rules, 2004 provided for the utilization of input credit and input service credit, allowing for refunds when they cannot be utilized. The appellant relied on the interpretation of the rule in the case of Fibres & Fabrics International (P.) Ltd., where it was held that the benefit provided in the rule cannot be denied solely due to the absence of a notification. The Division Bench's decision in the same case supported the appellant's argument, stating that the notification dated 14-3-2006 would be applicable even to the period prior to it based on the rule's position.The Tribunal, bound by the decision of the Division Bench, set aside the impugned order and allowed the appeal with consequential relief. The Tribunal concluded that the denial of the refund based on the absence of a specific Notification before 14-3-2006 was not justified, and the appellant was entitled to the refund of the Service Tax credit on input services for the relevant period.This detailed analysis of the judgment highlights the key arguments presented by the parties, the legal interpretation of the relevant rules and notifications, and the Tribunal's decision based on precedent and legal reasoning.