TaxTMI 
TaxTMI 
2025 (7) TMI 701
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.... Service Tax Miscellaneous Application No. 87043 of 2024 Service Tax Miscellaneous Application No. 86035 of 2025 Service Tax Miscellaneous Application No. 86189 of 2025 Service Tax Miscellaneous Application No. 86190 of 2025 (on behalf of Appellant/Respondent) In Service Tax Appeal No. 87699 of 2016 Service Tax Miscellaneous Application No. 87044 of 2024 Service Tax Miscellaneous Application No. 86031 of 2025 Service Tax Miscellaneous Application No. 86191 of 2025 Service Tax Miscellaneous Application No. 86192 of 2025 (on behalf of Appellant/Respondent) In Service Tax Appeal No. 87700 of 2016 HON'BLE MR. S. K. MOHANTY, MEMBER ( JUDICIAL ) And HON'BLE MR. M.M. PARTHIBAN, MEMBER ( TECHNICAL ) Shri Vinay Jain, Advocate a/w Ms. Shambhavi Dewalkar, C. A. for the Appellants Shri S. B. P. Sinha, Authorized Representative for the Respondents ORDER Per: S.K. Mohanty Heard both sides and examined the case records. 2. Both the assessee-appellants and Revenue have filed these miscellaneous applications, praying for consideration of the additional grounds, change in the amount of refund claim and change in the name and address of the respondents. A detailed chart, miscella....
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....However, we are not considering the miscellaneous applications, which were filed by the assessee-appellants for change in the amount of refund claims inasmuch as such aspect has to be looked into by the refund sanctioning authority and not by the Tribunal. 4. Brief facts of the case are that the assessee-appellants are engaged in providing export of investment advisory services to their holding company located in New York, USA. For the provision of such services, the appellants got themselves registered with the Service Tax Department under the service category of 'Banking and other Financial Services'. Since the appellants had exported the entire output services to the overseas entity, there was no scope or occasion on their part to utilize the accumulated CENVAT Credit available in their books of accounts. Therefore, for the disputed period, they had filed the refund applications, before the jurisdictional Service Tax authorities, claiming refund of the service tax paid on the input services, which were used or utilized by them for export of the output services. The refund applications filed by the assessee-appellants were favorably considered by both the authorities below in ....
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....nner of availment and utilization of CENVAT credit is contained in the CENVAT statute. If availment or utilization of the credit is not in conformity with the CENVAT statute, then Rule 14 ibid provides that such irregularly availed or utilized CENVAT credit can be recovered from the assessee and for effecting such recovery, the provisions of Section 11A of the Central Excise Act, 1944 or Section 73 of the Finance Act, 1994 shall apply mutatis mutandis. It is not the case of Revenue that the CENVAT Credit availed on the input services by the appellant is not in conformity in the CENVAT statute, as this fact is evident from the records that at the time of taking CENVAT credit on the disputed services, no proceedings were initiated by the department, seeking recovery of the alleged irregular credit. Since, Rule 5 ibid is a self-contained rule, which provides for grant of refund of accumulated CENVAT credit in case of exportation of the services, while dealing with such provision, the department cannot take recourse to the other provisions in the statute to say that availment of credit or utilization of credit is not in conformity with the statutory provisions. Insofar as claim of refu....
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....redit availed by the assessee- appellant. Thus, under such circumstances, it can be said that taking of cenvat credit on the disputed services by the appellant is in conformity with the Cenvat statute. Rule 5 ibid nowhere specifies that Cenvat credit can be denied on the ground of irregular availment or utilisation of the same. Thus, in absence of specific provisions contained in the statute, denial of the refund benefit provided under Rule 5 ibid, in our considered opinion, cannot stand for judicial scrutiny. Since the department has not specifically alleged regarding actual exportation of services by the assessee appellant and use/utilization of disputed services for such activities, benefit of refund should be available in terms of the unambiguous provisions contained in Rule 5 ibid, subject only to adherence of the formula laid down thereunder. The Learned Advocate appearing for the assessee-appellant submitted that it should be entitled for the benefit of interest for non consideration of the refund application within the stipulated time- frame prescribed under the statute. However, on perusal of the case records, more specifically the grounds of appeal annexed to the appeal m....