TaxTMI 
TaxTMI 
2023 (12) TMI 569
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt and learned Authorised Representative for the Revenue and perused the case records including the written submissions and the case laws placed on record. The issue involved herein is in a very narrow compass and is no more res integra. In the matter of M/s. KKR India Advisors Pvt. Ltd. vs. The Commr. of CGST & Central Excise, Mumbai Central; Service Tax Appeal Nos. 87845 & 88160 of 2019 similar issue came up for consideration before this Tribunal for deciding as to whether the authorities below have rightly rejected the refund claims in respect of certain services as ineligible input services in terms of Rule 2(l) of Cenvat Credit Rules, 2004 being no nexus with the output service and this Tribunal vide Final Order No. A/86106-86107/2022 dated 25.11.2022 allowed the appeal filed by the assessee/appellants therein. The relevant paragraphs of the said decision are extracted as under : - "xxx xxx xxx 5. I have heard learned Counsel for the appellant and learned Authorised Representative for the Revenue and perused the case records including the synopsis & case laws placed on record by the learned counsel. The first objection raised by the learned counsel is non-iss....
X X X X Extracts X X X X
X X X X Extracts X X X X
....'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 alleging that there was no nexus between the output and input services. It is well settled legal position that denial of Cenvat credit can be done only by issuing notice under Rule 14 ibid. Having allowed the Cenvat credit or by not denying the same, the department cannot reject refund of Cenvat credit under Rule 5. It is well settled principle that availment of Cenvat credit, its utilisation and refund are different aspects dealt with under CCR, 2004. Rule 5 provides for any refund of Cenvat credit and nowhere in this Rule there is a provision to determine the correctness about the availment of Cenvat credit. Its only Rule 14 ibid which provides for recovery of irregularly availed Cenvat credit. I find force in the submission of Learned Counsel that since availment of credit has not been questioned by the department in terms of Rule 14 ibid, the refund benefit cannot be denied on the ground of non-establishment of nexus between input and the output services. This Tribunal in Appellant's ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 otherwise. The relevant paragraphs in the said order are extracted hereinbelow: "3. Rule 5 of Cenvat Credit Rules, 2004, was substituted vide Notification No. 18/2012-C.E. (N.T.), dated 17-3-2012, with effect from Appeal Nos. ST/88190, 88215, 88216 & 88217/2018, 1- 4-2012. The said substituted rule has prescribed the formula for claiming refund of service tax by the service provider. Under such amended rule in vogue, there is no requirement of satisfying the nexus between the input services and the output service provided by the service provider. Consequent upon substitution of the said Rule in the Union Budget-2012, the Tax Research Unit (TRU) of CBEC vide letter dated 16-3-2012 has clarified as under : - "F.1 Simplified scheme for refunds : 1. A simplified scheme for refunds is being introduced by substituting the entire Rule 5 of Cenvat Credit Rules, 2004. The new scheme does not require the kind of correlation that is needed at present between exports and input s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ly by taking recourse to Rule 14 ibid. 6. In view of the discussions made hereinabove in the preceding paragraphs, in my opinion since the provisions of Rule 14 ibid have not been invoked, the refund of Cenvat credit as claimed by the Appellant under Rule 5 ibid cannot be denied to them and the same is admissible. Therefore, the Appeals filed by the Appellant are allowed with consequential relief, if any." 7. In Appellant's own case this Tribunal in the matters of KKR India Advisors Pvt. Ltd. vs. CGST Mumbai Central vide Final Order No. A/861146-86148/2018 dated 24.4.2018 and in the matter of KKR India Advisors Pvt. Ltd. vs. CGST Mumbai Central vide Final Order No. A/86618/2019 dated 16.9.2019 has held travel agent service and club membership/ association service as eligible input service and eligible for refund under Rule 5 ibid. I don't understand what is meant by 'tangible evidence', the term that has been used by the learned Commissioner in the impugned order. Although, as submitted by learned counsel, the mails and sample copy of invoices were produced by them before the learned commissioner in support of their submissions but simply the claim has been reject....