TaxTMI 
TaxTMI 
2025 (12) TMI 1308
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....es, 2004 (CENVAT Rules) read with Notification No. 27/2012CE(NT) dated 18.06.2012 and under Notification No.39/2012-ST dated 20.06.2012, as amended by Notification No.03/2016-ST dated 03.02.2016. Order-in-Original, dated 23.05.2018, rejected refund claim of Rs.3,60,00,754, for the period Apr. 2016 to Sep. 2016. The impugned Order-in-Appeal, dated 25.01.2018, upholds such rejection, the rejection was mainly on the grounds that the input services have no nexus with output services; Swachha Bharat Cess (SBC) paid on input service invoices issued prior 03.02.2016; some Export invoices were of prior period though realized during the period in question; error in calculation as turnover excluded only from export turnover and not from total turnover etc. 3. Shri Prasad Paranjape, Learned Counsel for the appellants reiterates the grounds of appeal and submits that Revenue neither raised any objection on eligibility of CENVAT credit nor issued any notice demanding the credit wrongly availed, if any, under Rule 14 of the CENVAT Rules, either with respect to Service tax credit availed on SBC or on input services used in provision of output services; the same cannot b....
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....on viz. Notification 39/2012-ST, as amended, read with Rule 6A of Service Tax Rules, which does not prescribe any condition; as per Rule 6A of the Service Tax Rules, export is complete only upon receipt of foreign exchange; thus, the Appellant has rightly considered the said turnover in its export turnover after receipt of foreign exchange irrespective of the invoice date; Commissioner was not correct in drawing support from Rule 5(2) of the CENVAT Rules; the said rule states that it shall apply to exports made on or after the 1st April, 2012; even by applying the said rule the Appellant is entitled to refund as claimed, as export is complete only upon receipt of foreign exchange; proviso to Rule 5(2) of the CENVAT Rules only clarifies that if someone is claiming refund under erstwhile Rule 5, then he should do so within 1 year from the commencement of the new rule; as the Appellant is claiming refund of exports completed after the new rule came into existence, the said proviso will not have any application to the Appellant's case. 5. Learned Counsel submits also that Ld. Commissioner (Appeals) has wrongly upheld exclusion of turnover pertaining to invoices where consideration w....
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....marily for personal use or consumption of any employee; therefore, learned Commissioner(Appeals) has rightly rejected the refund related to Hotel etc and short term accommodation Services, Outdoor Caterer's Services, Club or association Services while allowing the Credit on other Services such as Event Management Services, Work Contract Services, Civil Construction Services, Mandap Keepers' Services, Club or association Services, which were denied by the original authority. He submits that the cases relied upon by the appellants deal with the period prior to the amendment and therefore, not applicable. 9. Learned Authorized Representative submits also that the argument that if any credit is to be denied, it should be done by invoking Rule 14 of CENVAT credit Rules, 2004 and not while deciding a refund application, is not valid after the amendment in 2012. He submits that vide Notification No. 18/2012-C.E. (N.T.), CENVAT Credit Rules, 2004 were amended and w.e.f. 17.03.2012, for the words "taken or utilized wrongly", the words "taken and utilized wrongly" stand substituted; in the instant case, credit having not been utilized, invocation of Rule 14 is not nece....
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....April 2007 to March 2011. 12. We find that w.e.f. 1.4.2011 the 'input service" means any service, - (i) used by a provider of taxable service for providing an output service; or (ii) used by a manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products upto the place of removal and it includes services used in relation to modernization, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises, advertisement or sales promotion, market research, storage upto the place of removal, procurement of inputs, accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, security, business exhibition, legal services, inward transportation of inputs or capital goods and outward transportation upto the place of removal and excludes, inter alia, services such as those provided in relation to outdoor catering, beauty treatment, health services, cosmetic and plastic surgery, membership of a club, health and fitness centre, life insurance, health insurance and ....
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....73 and 75 of the Finance Act, 1994, as the case may be, shall apply mutatis mutandis for effecting such recoveries. 14. We find that in view of the above, even in the cases where the assesses, exporting 100 % of the services provided, would have no need to utilize the CENVAT credit, the credit wrongly availed can be recovered under the provisions of Rule 14 (i) of CCR, 2004. Therefore, we are not inclined to accept the argument of Learned AR. We find that the eligibility of a particular service to refund under Rule 5 is inextricably linked to the eligibility of such service under Rule 2(l) of CENVAT Credit Rules, 2004. Therefore, even if credit on particular service, is held not eligible to be eligible for refund, recourse has to be taken to Rule 14 of CCR, 2004 and as held in a number of cases, Revenue is not permitted to decide the nexus of the input service to the output service while deciding a refund claimed under Rule 5. 15. We find that the Learned Counsel for the appellants submits that even assuming that the refund claimed by the appellant is rightly rejected, still the appellant would have been entitled for recredit of the amount rejected in terms of Notificat....