TaxTMI 
TaxTMI 
2022 (8) TMI 1155
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....Rule 5 of the Cenvat Credit Rules read with Notification No. 05/06-CE(NT) dated 14.03.2006 for the period October 2009 to March 2010 and April 2010 to September 2010. 2.2 These refund claims were rejected in part. Against the part rejection of the refund claims appellant preferred appeals to the Commissioner (Appeals). The Commissioner (Appeals) by the impugned order has upheld the part rejection of the refund claims and hence these appeals. 3.1 We have heard Shri Prasad Paranjape, Advocate for the appellant and Shri Prabhakar Sharma, Superintendent, Authorised Representative for the Revenue. 3.2 Arguing for the appellant, learned counsel submits:- • The lower authorities should not reject the refund claims for the reason that the services as claimed by them to be exported were not exported. However, the refund claims have been modified on the following two grounds:- • Certain input services which were used for output services abroad were received in the premises which were not the part of the registered premises of the appellant at the material time. • While calculating the cenvat credit availed during the qua....
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....nvat Credit Rules are ineligible credits. However, admittedly no proceedings have been initiated against the appellant for denial of such credit in terms of Rule 14 of the Cenvat Credit Rules. In absence of such proceedings, the lower authorities cannot be justified in modifying the refund claims for this reason. This is the view which has been expressed by the Tribunal in appellant's own case reported in [2022 (58) GSTL 539 (Tri.-Mum)]. The relevant para is reproduced below:- "5. I have heard Learned Counsel for the Appellant and Learned Authorised Representative for the Revenue and perused the case records including the written submission and the case laws filed by the respective sides. There is no doubt that Rule 5 ibid provides for refund of accumulated Cenvat credit subject to compliance of the procedure/guideline laid down under the notifications issued thereunder. The refund of Cenvat credit on the services in issue was mainly denied to the Appellant on the ground of 'no nexus' between the input services and the export services. The issue which falls for consideration in these Appeals is whether the department can deny refund of Cenvat credit under Rule 5 ibid alleg....
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....ishment of nexus cannot be sustained, I find that this Tribunal in the case of Maersk Global Services Centres (I) Pvt. Ltd. (supra) has extended the refund benefit on the ground that establishment of nexus between the input and the output services cannot be insisted upon. The relevant paragraphs in the said decision is extracted hereinbelow : "7. In this case, the department has not disputed the fact regarding export of output service by the appellant. The dispute raised in the present case were in context with non- establishment of nexus between the input and output services, service description provided in the invoices were not confirming to the input service definition provided under Rule 2(l) ibid and the invoices were not submitted by the appellant, establishing the fact that the refund benefit should be granted to it. So far as establishing the nexus between input and the output service is concerned, I find that this Tribunal in the case of Accelya Kale Solutions Ltd. (supra) by relying upon the letter dated 16-3- 2012 of TRU has held that under Rule 5 ibid, refund of input service credit is permissible on compliance of the formula prescribed therein and not otherwis....
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....le 5 this Tribunal in the matter of M/s. Cross Tab Marketing Service Pvt. Ltd. v. C.C. GST, Mumbai East; reported in 2021-VIL-466- CESTAT-MUM-ST = 2021 (55) G.S.T.L. 29 (Tri. - Mumbai) vide order dated 17-9-2021 held that the amended Rule 5 ibid does not require establishment of any nexus between input and export 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 and the net Cenvat credit taken during that period. Indisputably, in the refund proceedings under Rule 5 ibid as amended, any such attempt to deny or to vary the credit availed during the period under consideration is not permissible. If the quantum of the Cenvat credit is to be varied or to be denied on the ground that certain services do not qualify as input services or on the ground of 'no nexus', then the same could have been done only by taking recourse to Rule 14 ibid." 4.3 In case of Qualcomm India Pvt Ltd [2020 (43) GSTL 402 (T-Hyd)] on the same issue the Hyderabad bench observed as follows: "6. Rule 3 of the Cenvat Credit Rules, 2004 is the enabling provision,....
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....tuted by the Notification No 18/2012-CE (NT) dated 17.03.2012 is reproduced below: "5. Refund of CENVAT Credit. - (1) A manufacturer who clears a final product or an intermediate product for export without payment of duty under bond or letter of undertaking, or a service provider who provides an output service which is exported without payment of service tax, shall be allowed refund of CENVAT credit as determined by the following formula subject to procedure, safeguards, conditions and limitations, as may be specified by the Board by notification in the Official Gazette: 𝑅𝑒𝑓𝑢𝑛𝑑 𝐴𝑚𝑜𝑢𝑛𝑡 𝐸𝑥𝑝𝑜𝑟𝑡 𝑡𝑢𝑟n𝑜𝑣𝑒𝑟 𝑜𝑓 𝑔𝑜𝑜𝑑𝑠 + 𝐸𝑥𝑝𝑜𝑟𝑡 𝑡𝑢𝑟𝑛𝑜𝑣𝑒𝑟 𝑜𝑓 𝑠𝑒𝑟𝑣𝑖𝑐𝑒𝑠 / 𝑇𝑜𝑡𝑎𝑙 𝑡𝑢....
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....b-rule (1) of rule 5. 3. Total CENVAT Credit taken on inputs and input services during the quarter. 4. Amount reversed in terms of sub-rule (5C) of rule 3 5. Net CENVAT Credit = (3) - (4) 6. Total value of all goods cleared during the quarter including exempted goods, dutiable goods and goods for export. 7. Export turnover of services and value of all other services, provided during the said quarter. 8. All inputs removed as such under sub-rule (5) of rule 3, against an invoice during the quarter. 9. Total Turnover = (6) + (7) + (8) 10. Refund amount as per the formula = (1) * (5)/(9), in respect of goods exported. 11. Refund amount as per the formula = (2) * (5)/(9), in respect of services exported. 12. Balance of CENVAT Credit available on the last day of quarter. 13. Balance of CENVAT Credit available on the day of filing the refund claim. 14. Amount claimed as refund, [Amount shall be less than the minimum of (10), (12) and (13) in case of goods or the minimum of (11), (12) and (13) in cas....