TaxTMI 
TaxTMI 
2013 (12) TMI 156
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....d by them and since in terms of the provisions of Cenvat Credit Rules, the Cenvat credit in respect of inputs and input services availed for manufacture of goods exported under bond/LUT is not required to be reversed, they had Cenvat credit got accumulated due to export of goods without payment of duty under bond/LUT and since they could not utilise that credit for payment of duty on clearances for home consumption, they claimed cash refund of accumulated Cenvat credit in terms of Rule 5 of the Cenvat Credit Rules, 2004 read with Notification No. 5/2006-CE (NT) issued under this rule. The dispute in this case is in respect of the cash refunds for the months of June 2008 and August 2008. During these months, the appellant had availed service....
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....1-262/CE/APPL/NOIDA/2010 dated 20/08/2010 upheld the Assistant Commissioner's orders against which these two appeals have been filed. 2. Heard both the sides. 3. Ms. Nupur Maheshwari, Advocate, the learned Counsel for the appellant, pleaded that the dispute pertains to June 2008 and August 2008, that during that period in terms of the provisions of Rule 9 (1) (b) regarding availability of Cenvat credit on the basis of supplementary invoices issued by the supplier of inputs/capital goods, there was a condition that Cenvat credit on the basis of such supplementary invoices would not be available when the duty paid under the supplementary for inputs or capital goods was that which had been deliberately short paid by the supplier of input....
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.... availability of Cenvat credit of service tax paid under supplementary invoices was introduced by inserting clause (bb) to Rule 9 (1) w.e.f. 1/4/11, that this provision cannot be given retrospective effect and, that in view of this, the impugned order denying the Cenvat credit on the basis of supplementary invoices of the service providers and its cash refund is not correct. 4. Shri Davender Singh, the learned Jt. CDR, defended the impugned order by reiterating the findings of the Commissioner (Appeals) in it and emphasised on the following points :- (a) From the provisions of Rule 9 of the Cenvat Credit Rules, as the same existed during the period prior to 1/4/11 it is clea....
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....ce recipient who had used that same for manufacture of excisable goods or providing taxable output service, if the tax paid under the supplementary invoice was that which had been deliberately short paid by the service provider by taking recourse to fraud, wilful misstatement, suppression of facts etc. 5. I have considered the submissions from both the sides and perused the records. 6. The point of dispute in this case is is about availability of Cenvat credit of service tax paid by the service provider under supplementary invoices, as in respect of service providers there was dispute with regard to value of their services, which had subsequently had been decided against them by the Department. It appears that the service tax demand a....
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....r or from any other premises, from where the goods are sold, shall be the valid document for Cenvat credit except in the cases where the additional amount of tax paid under supplementary invoice was that which had become recoverable from the manufacturer or importer on account of any non-levy or short levy by the reason of fraud, collusion, misstatement or suppression of facts etc. on the part of the manufacture or importer. This provision was only in respect of supply of inputs and capital goods and, as such, in respect of supply of input services there was no such provision. Such a provision was introduced only w.e.f. 1/4/11 by inserting clause (bb) in Rule 9 (1). The point of dispute is as to whether during the period prior to 1/4/11, wh....