TaxTMI 
TaxTMI 
2016 (3) TMI 952
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....Boisar II division, Thane II. The said claims, pertaining to the period from September, 2004 to March, 2006, are consequential refund claims arising out of Order-in-Appeal No. CPA (122)61/STC/2006 dated 20.12.2006, wherein the Commissioner (Appeals) set aside the Order dated 24.07.2006 passed by the Assistant Commissioner of Service Tax, Division VI, Mumbai and further ordered the original authority to grant refund as per law. The Assistant Commissioner of Service Tax, Division VI, Mumbai returned the appellants claims for refund of unutilized Service Tax credit on the ground that claims cannot be entertained by their office as it is beyond the jurisdiction of the Service Tax Commissionerate. Later, the appellants filed one more refund claim for Rs. 21,08,265/- vide their letter dated 03.05.2007 for refund of unutilized Service Tax for the period from April 2006 to September 2006 with the Central Excise Division, Boisar II. Thus, totally four refund claims for Rs. 59,35,217/- were filed by the appellants for refund of unutilized Service Tax in terms of Rule 5 of CENVAT Credit Rules, 2004. On scrutiny and verification of all the above four refund claims it was noticed that in respe....
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....on in respect of the refund claims post 14.03.2006. 4. Learned Senior Counsel would draw our attention to the facts of the case. He would submit as regards the three refund claims filed by the appellant for the period 10.09.2004 to 31.03.2005, both the lower authorities have erred in as much as were sanctioned by the first appellate authority by Order-in-Appeal No. CPA (122) 61/STC/2006 dated 20.12.2006. He would submit that no appeal is filed by the Revenue against this order. He would submit that lower authorities have misinterpreted the order portion in the said order of the Commissioner (Appeals) dated 20.12.2006. It is his submission that the lower authorities have not followed the judicial discipline. This is in violation of law has settled by the Hon'ble Apex Court in the case of Union of India Vs. Kamlakshi Finance Corporation Ltd. - 1991 (155) ELT 433 (S.C.). As regards the merits of the case, he submits that the benefit of Notification No. 05/2006 dated 14.03.2006 was eligible to them as held by the Tribunal in the case of Fibres & Fabrics International Pvt. Ltd. Vs. Commissioner of Commissioner (Appeals), Bangalore - 2009 (14) STR 809 (Tri. - Bang.). He would furthe....
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....NVAT Credit Rules, 2004, which was rejected by the lower authority for reasons enumerated earlier. However, these reasons do not stand the test of law. It is not the case of the lower authority that appellant are not eligible to avail Service Tax credit. The provision of Rule 5 of CENVAT Credit Rules, 2004 are very clear. The rule provides for refund of credit in respect of the input or input service subject to safeguards, condition and limitations as may be specified by the Central Govt. by Notification. Notification No. 5/2006 C.E. (NT) dated 14.03.2006 has been issued under Rule 5 of CENVAT Credit Rules, 2004. It can be seen that this Notification includes 100% Export Oriented Units and provides that where the claim is filed by such unit, the claim for refund may be submitted for each calendar month. Sr. No. 5 of Appendix to the said Notification restricts the refund of un-utilized input service credit to the extent of the ratio of the export turnover to the total turnover for the given period to which the claim relates. A formula has been prescribed for this purpose. Since the appellants exported 100% of their final products, there can be no scope for utilisation of the credit ....
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....pline while rejecting the refund claim which were already sanctioned by the first appellate authority by order dated 20.12.2006. In view of foregoing, the impugned order to that extent is unsustainable liable to be set aside and we do so. In our view by looking at the issue through another angle, we hold in these three refund claims, the findings that the benefit of Notification No. 5/2006 CE (NT) dated 14.03.2006 is not applicable for the period prior to Notification dated 14.03.2006 are not sustainable, as it is now squarely settled in favour of assessee by the Tribunal in the case of Fibres & Fabrics International Pvt. Ltd. (supra). We reproduce the ratio which is in para 9. "9. On a very careful consideration of the matter, in the present appeals, all the refund claim pertains to period prior to 14-3-2006. However, as on 10-9-2004 itself, we have already given the reproduction of Rule 5, the rule itself provides the utilisation of the input credit and input service credit and where such input service credit or input credit cannot be utilized, then the same can be given as refund. So, there is indeed a provision. Just because the notification has not been issued at that ....