2021 (9) TMI 979

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.... "9. In view of the above discussion, the total Cenvat credit to the extent of Rs. 7,77,628/- is allowed as admissible Cenvat credit for consideration of sanctioning of refund and the total Cenvat Credit to the extent of Rs. 5,56,690/- is held as inadmissible and in respect of the remaining amount of refund claim as discussed supra, the appellant is directed to produce the necessary documents to the adjudicating authority and the Adjudicating Authority should examine the same before considering the sanction of refund claim to the appellant. Accordingly the impugned order of the lower adjudicating authority need partial modification to that extent and are modified. In view of the above, the impugned order is partially modifie....

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....e in appeal before CESTAT 3. I have heard, Shri Parth Shah, Chartered Accountant, for the Appellant and Shri Dilip Shinde, Assistant Commissioner, Authorized Representative, for the Revenue. 4.1 I have considered the impugned order along with the submissions made in appeal and during the course of arguments. 4.2 Commissioner (Appeals) has vide the impugned order that held that CENVAT credit taken by the appellant on following services is inadmissible as they do not qualify as input services- • Air travel agent services (para 7.1) • Banking and Financial Services (para 7.3) • Cab Operator Services (para 7.5) • Courier Services (para 7.7) • Maintenance and Repair Servic....

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....e following manner, namely:- Export turnover of services = payments received during the relevant period for export services + export services whose provision has been completed for which payment had been received in advance in any period prior to the relevant period - advances received for export services for which the provision of service has not been completed during the relevant period; (E) "Total turnover" means sum total of the value of - (a) all excisable goods cleared during the relevant period including exempted goods, dutiable goods and excisable goods exported; (b) export turnover of services determined in terms of clause (D) of subrule (1) above and the value of all other services, during the r....

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....the exported services. The rule only provides that the admissible refund will be proportional to the ratio of export turnover of goods and services to the total turnover, during the period under consideration, of the Net CENVAT credit taken during that period. Undisputedly in the refund proceedings under Rule 5 of CENVAT Credit Rules, 2004 as amended any such attempt whereby credit availed during the period under consideration is sought to be denied or varied, is not permissible. If the quantum of the Cenvat Credit is sought to be varied, by holding that certain services do not qualify as input services then the same could have been done by invoking the provisions of Rule 14 of the CENVAT Credit Rules, 2004. In my view the Commissioner (App....

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....al Order No A/86651-86655/2019 dated 20.09.2019]. Tribunal has observed therein stating as follows: "4. However, it is seen that no objection was raised by the revenue at the time of availing of credit. Rule 5 allows refund of accumulated credit and at the time of grant of refund, the Revenue is not permitted to examine the availability of the CENVAT credit. Such an exercise was required to be adopted by the Revenue at the time of availment of credit, by way of initiation of separate proceedings. Having not done that, it is not permissible to raise the objection at the time of grant of refund in terms of the said rule. The reliance by the Learned Advocate to the Circular no. 120/01/2010-ST dated 19.01.2010 clarifying the issue that....