TaxTMI 
TaxTMI 
2023 (5) TMI 864
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....rejected as per the impugned order. 3.1 I have heard Shri Sushant Murthy, Advocate for the appellant and Shri Vinod Kumar, Assistant Commissioner, Authorised Representative. 3.2 Arguing for the appellant, learned counsel submits that:- In a proceedings under Rule 5 of the Cenvat Credit Rules, 2004, denial of Cenvat credit cannot be done. If Cenvat credit was to be denied, the same should have been done after initiating proceedings under Rule 14 of the Cenvat Credit Rules, 2004. He relies upon the following decisions:- BNP Paribas India Solution Pvt. Ltd. [2022 (58) GSTL 539 (Tri.-Mumbai)] JFE Steel India Pvt. Ltd. [2021 (44) GSTL 292 (Tri.- Chan.)] TPG Capital India Pvt. Ltd. [Final Order No. A/86651- 86655/2019 dated 20.09.2019)] Cross Tab Marketing Services Pvt. Ltd. [2021 (55) GSTL 29 (Tri.-Mumbai)] Acceleya Kale Solutions Ltd. [2019 (369) ELT 803 (Tri.- Mumbai)]. 3.3 Learned AR reiterates the findings recorded in the impugned order. 4.1 Commissioner (Appeals) has in the impugned order held as follows:- "11. In view of the foregoing, I allow the appeal of the appellant partly and order for modifi....
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....r 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 Services (para 7.10) ➢ Market Research Agency Service (para 7.11) 4.3 Rule 5 of the CENVAT Credit Rules, 2004 was amended by the Notification No 18/2012 -CX (NT) dated 07.03.2012 to provide as under. 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 b....
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...., 2005 in respect of such tax. Explanation 1.- For the purposes of this rule,- (1) "export service" means a service which is provided as per the provisions of Export of Services Rules, 2005, whether the payment is received or not; (2) "relevant period" means the period for which the claim is filed. Explanation 2.-For the purposes of this rule, the value of services, shall be determined in the same manner as the value for the purposes of sub-rule (3) and (3A) of rule 6 is determined." 4.4 From the plain reading of the said rule it is evident that the amended rule 5, does not require establishment of any nexus between the input services and 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 C....
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....earned Advocate to the Circular no. 120/01/2010-ST dated 19.01.2010 clarifying the issue that by observing that there cannot be different yardstick for establishing nexus for taking of credit and for refund of credit, is appropriate. Otherwise also, we find the issue stands decided by the many decisions of the Tribunal. One such reference can be made to the Tribunal decision in the case of Barclay Global Service Centre Pvt. Ltd.& Ors. V. Commissioner of Central Excise & Service tax, Noida [2019-TIOL-1714-CESTATALL]. It stands held in the said decision that as no objection was raised by the Revenue at the time of availing the credit, such objection cannot be raised at the time of deciding the refund claim in terms of provision of Rule 5." 4.6 In view of the discussions as above I am not in position to sustain the impugned order to the extent indicated. Since the Commissioner (Appeals) has by the impugned order held the refund to be admissible, to the extent of CENVAT Credit held admissible by him subject to verification of the documents by the original authority I modify his order to this extent i.e. that entire credit as claimed by the Appellant for determining the refund ....