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of <h1>CENVAT credit refunds previously sanctioned cannot be later disallowed; extended limitation for show-cause notices held unjustified</h1> Dominant issue: Whether Revenue could challenge CENVAT credit availed despite earlier orders sanctioning refund. Reasoning: Consistency principle and ... Correctness on the side of Revenue to question the CENVAT credit availed without challenging the orders sanctioning refund - suppression of facts or not - invocation of extended period of limitation - HELD THAT:- It is found that similar was the decision by the Hon’ble Apex Court in the case of ITC Ltd. [2019 (9) TMI 802 - SUPREME COURT (LB)] and the decision of Hon’ble High Court of Delhi in the case of B.T. India Ltd. [2024 (12) TMI 1578 - SC ORDER] - It is further found that Department cannot take one stand while sanctioning refund and a different stand for disallowing the CENVAT credit. Therefore, the appellants have a strong case on this issue in their favour. Further, it is found that the show cause notice has been issued invoking the extended period. The Revenue has been aware of the nature of the services rendered by the appellants and the fact of availment of CENVAT credit by them. Moreover, no suppression, misstatement, mis-representation, fraud, collusion etc. has been established with cogent evidence. In view of the same, Revenue has not made out any case for invocation of extended period. The impugned orders cannot be sustained - Appeal allowed. Issues: (i) Whether refund orders sanctioned under Rule 5 / Notification No.27/2012 attain finality such that Revenue cannot reopen the same in a collateral proceeding; (ii) Whether the services rendered by the appellant qualify as intermediary services; (iii) Whether invocation of the extended period of limitation for demand is justified.Issue (i): Whether refund orders sanctioned under Rule 5 / Notification No.27/2012 attain finality and preclude the Department from later treating the refunded amounts as erroneous and recovering them in a collateral proceeding.Analysis: The refund orders were issued on the applications filed under the refund provisions and were neither reviewed nor appealed against by the Department. Authorities relied upon establish that an order of refund passed after adjudication under the relevant statutory provision attains finality and cannot be recharacterised as an 'erroneous refund' by another authority in a collateral proceeding absent specific grounds such as proven fraud, suppression or misrepresentation.Conclusion: In favour of the Assessee.Issue (ii): Whether the services rendered are intermediary services within the statutory definition and thus not eligible for export refund treatment.Analysis: The statutory/administrative test for intermediary services requires (inter alia) existence of a minimum of three parties, two distinct supplies and an agent/ intermediary character. The contractual arrangement and the nature of activities (marketing, promotion, payment collection, invoicing, business support) show principal-to-principal supplies rather than an agent/intermediary relationship. Administrative clarifications also indicate that advertising/agency services to foreign principals are not intermediary services in the facts presented.Conclusion: In favour of the Assessee.Issue (iii): Whether the extended period for invoking demand can be invoked by the Department in the absence of established suppression, misstatement, fraud or collusion.Analysis: The Department was aware of the nature of services and the availment of CENVAT credit when refund orders were granted. No cogent evidence of suppression, misrepresentation, fraud or collusion has been shown to justify invoking the extended limitation period. Established authorities require such positive material before extended period can be invoked.Conclusion: In favour of the Assessee.Final Conclusion: The legal effect is that the impugned demands and orders cannot be sustained on the grounds of reopening sanctioned refund orders, characterising the supplies as intermediary services, or invoking the extended period; the appeals are allowed.Ratio Decidendi: Refund orders passed after adjudication under the statutory refund provisions attain finality and cannot be reopened as 'erroneous refund' under the law by another authority in a collateral proceeding unless there is independent, cogent proof of suppression, misrepresentation, fraud or collusion.
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