TaxTMI 
TaxTMI 
TaxTMI 
2023 (3) TMI 446
X X X X Extracts X X X X
X X X X Extracts X X X X
..../CGST/MS/ 2018-19 is disposed of in the said terms." 2.1 The appellant providing "Banking and other financial services". They filed two refund claim of RS. 14,44,091/- for the period April 2005 to Dec. 2005 and Rs. 38,44,130/-for the period from January 2006 to September 2006 with the erstwhile Service Tax Commissionerate on the ground that they were not in a position to utilize the cenvat credit of the duty service Tax taken on input services used in providing output services exported without payment of service tax. Both the claims were rejected vide two O-I-Os dated 03.04.2007 and 06.08.2007. Aggrieved appellant filed the appeal to Commissioner (Appeal) which were rejected by order in appeal dated 06.05.2010 2.2 Against O-I-A dated 06.05.2010 preferred an appeal in the CESTAT, West Zonal Bench, Mumbai. The Hon'ble CESTAT, West Zonal Bench Mumbai vide order A/1401/15/STB dt. 13.05.2015 remanded the matter to original authority observing as follows: * Claimant was eligible to avail the Cenvat credit of the input services for the period prior to 14.03.2006 and being eligible to claim refund of the unutilized Cenvat Credit, the claimant cannot be denied the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....79 (T-Bang)] affirmed at [2016 (43) STR 321 (Kar.)] * Jagdamba Polymers Ltd. [2010 (253) ELT 626 (Tri. Ahmd.)] * Morning Star India Pvt Ltd [2017-TIOL-3942- CESTAT-Del] * Serco Global Services Pvt Ltd [2015 (39) STR 892 (Tri. Del.)] * Appellants couldn't have filed revised returns for the period April 2005 to March 2006 since the time limit for filing revised returns had already lapsed. * In the impugned order has held that there is a time limit for availing the cenvat credit. The time limit for availing the cenvat credit has been introduced only from Financial Year 2014-15 onwards and prior to the said period there was no restriction / outer limit on availing the Cenvat credit. * Refund of unutilised cenvat credit cannot be rejected merely on the ground that the same is not reflected in the service tax return. * The Appellants have availed the cenvat credit in the books of accounts and in the Cenvat credit register maintained. Therefore, the genuinity of the transactions and eligibility of Cenvat credit can be verified by the department and it is not alleged that input services are ineligible services. Therefore, substantial be....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... home consumption or for export on payment of duty; or (ii) service tax on output service, and where for any reason such adjustment is not possible, the manufacturer or the provider of output service shall be allowed refund of such amount subject to such safeguards, conditions and limitations, as may be specified, by the Central Government, by notification: Provided that no refund of credit shall be allowed if the manufacturer or provider of output service avails of drawback allowed under the Customs and Central Excise Duties Drawback Rules, 1995, or claims rebate of duty under the Central Excise Rules, 2002, in respect of such duty; or claims rebate of service tax under the Export of Service Rules, 2005 in respect of such tax. Provided further that no credit of the additional duty leviable under sub-section (5) of section 3 of the Customs Tariff Act shall be utilised for payment of service tax on any output service. Explanation: For the purposes of this rule, the words "output service which is exported" means the output service exported in accordance with the Export of Services Rules, 2005. 16. I further....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sp; Cenvat Credit details Details of Credit April May June July August September [1] [2] [3] [4] [5] [6] [7] Opening Balance 242,771 Credit availed on inputs Credit availed on capital goods Credit availed on input services 242,771 2,78,062 165,760 390,034 1,600,56 7 170,857 Credit received from input service distributor Total credit availed 242,771 520,833 686,59 3 1,076,627 2,677,194 2,848,051 Credit utilized towards payment of service tax Closing balance 242,771 520,833 686,59 3 1,076,627 2,677,194 2,848,051 (B) Education cess credit details Details of Credit April May June July August September [1] [2] [3] [4] [5] [6] [7] Opening Balance 4,850 10,405 13,694 21,500 53,531 Credit on education cess availed on goods &nbs....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... clearly provides that refund of unutilized credit is available to the manufacturer as also by the provider of output service subject to the conditions set out therein. As noted earlier the appellant fulfills all other conditions. Thus, reading the Rule 5 as it stood prior to its amendment, as a whole, it is evident that refund of unutilized credit is allowable not only to manufacturers but also available to providers of out put service." 12. In our considered view, an identical issue and in respect of the very same provision, having been settled by the jurisdictional, High Court; we need not look any further. Respectfully following the ratio laid down by the Hon'ble High Court, we hold that the. appellant is eligible to avail the Cenvat credit of the input services for the period prior to 14.03.2006 and being eligible to claim refund of the unutilised Cenvat credit, he cannot be denied We set aside the impugned order to this extent on the same. this point." 4.5 From the perusal of the above order of tribunal while remanding the matter it is evident that tribunal has h....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bsp; all other financial records maintained by him in the normal course of business; Thus appellant could have produced any of the record as above to claim the refund of CENVAT Credit as per Rule 5. 4.6 Appellant has in support of the contention raised by them relied on the decisions, wherein following has been held:- Broadcom Research Pvt. Ltd. [2016 (42) STR 79 (Tri. Bang.)] affirmed at [2016 (43) STR 321 (Kar.)]- "6. The next ground is that Cenvat credit shown in the ST-3 returns does not tally with the amount claimed in the refund claims. In my opinion, the refund claim is not based on ST-3 returns and ST- 3 return is nothing but a report of transactions that have taken place over a period covered by the returns. On the ground that the figures in ST-3 returns were not correct or there was a substantial difference, refund claim cannot be rejected. For the purpose of consideration of refund claim, the relevant documents on the basis of which credit was taken, nature of service and its nexus and utilization of the service for there was some mistake in the ST-3 returns, substantive right of assessee for refund cannot be rejected. Therefore, I do not consider it necessary to ....