2024 (8) TMI 1203

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....heter Insertion Kit, Empty Blister Packs etc falling under Chapter 90, 48 and 39 of the First Schedule of the Central Excise Tariff Act, 1985. The Respondent started its operations in India in the year 2009 but the commercial production was started from January 2010 and export was started from February 2010. The Respondent were receiving input services and were availing Cenvat Credit under Rule 3 of the Cenvat Credit Rules, 2004. The Respondent, being an 100% EOU, were exporting its final products under bond without payment of duty; accordingly, they filed a refund claim of unutilized Cenvat Credit of Rs.91,65,673/- on 11.06.2010 for thirty services and excisable inputs under Rule 5 of the Cenvat Credit Rules, 2004 read with Notification No. 5/2006-CE(NT) dated 14.03.2006 for the quarter from January 2010 to March 2010. Refund was claimed since inception of the Respondent's company till 31.03.2010. Out of the total refund claim of Rs.91,65,673/-, Rs.2,18,553/- pertained to the Cenvat Credit availed on inputs and the balance amount of Rs.89,47,120/- pertained to thirty input services. The department demanded documents from the Respondent to verify the claim, which were submitted by ....

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....espondent was required to utilize the accumulated Cenvat Credit for home consumption or for export on payment of duty. The adjustment clause as contained in Rule 5 of Cenvat Credit Rules, 2004 is a mandatory provision which categorically provides that where for any reason such adjustment is not possible, the manufacturer or the provider of output service shall be allowed refund of such amount. 4.5 The learned AR further submits that the Respondent has failed to fulfill the requirements as envisaged under Rule 5 of Cenvat Credit Rules, 2004 read with Notification No. 5/2006-CE(NT) dated 14.03.2006 in as much as they have not exported the goods on payment of duty under claim of rebate. 4.6 The learned AR further submits that the Respondent is not entitled to take Cenvat Credit on various input services as claimed by them because the said services have not been used directly or indirectly, in or in relation to the manufacture of final product and such services do not fall under the definition of 'input service' and consequently the Respondent is not entitled for the refund of input service credit of the said services. In support of his submissions, he relies on the decision of Hon'b....

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....ndigarh Bench vide Final Order No. 63348/2018 dated 12.10.2018. 5.6 He further submits that it is a settled principal of law that once an issue is concluded between the two parties, it should not be reopened unless there is any fresh material emerging and giving a new dimension to the matter. In this regard, he relies on the following cases: a) M/s Radhasoami Satsang Soami Bagh Agra Vs Commissioner of Income Tax - (1992) 1 SCC 659 b) Genpact India Pvt Ltd Vs Union of Indin - CWP No. 6048 of 2021 -High Court of Punjab and Haryana c) Punjab State Warehousing Corporation Vs Commr of C. Ex. Chandigarh-I - 2019 (26) GSTL 234 (Tri. Chan.) d) ITC Ltd. Vs Commr of CGST & C. Ex., Kolkata North - 2020 (374) ELT 737 (Tri. Kolkata) 5.7 He further submits that the Department has not disputed eligibility of Cenvat Credit on certain input services while denying part of the refund of accumulated credit. He also submits that eligibility of Cenvat Credit cannot be questioned in refund proceedings in view of the following decisions : Commr of ST, Noida Vs M/s HCL Comnet System & Services Ltd - 2017 (12) TMI 1661 - Allahabad High Court ADP Pvt Ltd Vs Commr of ST, Hyderabad - 2020 (1)....

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....l Estate Service - DBOI Global Services Pvt Ltd vs Commr of Service Tax, Mumbai - 2017 (48) STR 157 (Tri. - Mumbai) 7) House Keeping Service - Commissioner of Central Excise, Chennai vs Rotork Control (India) Pvt Ltd - 2012 (277) ELT 217 (Tri. - Chennai) 8) Chartered Accountant Service - Arm Embedded Technologies Pvt Ltd vs CCE & ST, Bangalore - 2016 (45) STR 133 (Tri. - Bang.) 5.13 As regards the refund in respect of the invoices addressed to the corporate office at Gurgaon, the learned Counsel submits that it is merely a technical lapse and substantive benefits like Cenvat Credit cannot be denied for some procedural irregularities of not having a valid address on the invoices, because there is no dispute about receipt of the service by the Respondent and its utilization. In this regard, he relies on the following decisions: Jai Balaji Industries Ltd Unit IV vs CCE, Bolpur - 2022 (58) GSTL 361 (Tri. Kolkata) Madhya Pradesh Consultancy Organisation Ltd vs CCE, Bhopal - 2017 (4) GSTL 100 (Tri. Delhi) 6. After considering the submissions made by both the parties and perusal of the material on record, we find that as per the submission of the learned Counsel for the Responde....