TaxTMI 
TaxTMI 
2026 (2) TMI 523
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....e Lakhs Forty Four Thousands Five Hundred and Twenty Eight only) under Rule 5 of the Cenvat Credit Rules 2004 read with Notification No. 27/2012-CE(NT) dated 18.06.2012, as discussed above." B. Order-in-Original No.R-170/AC/Div-II/CGST/Noida/ 2017-18 "ORDER I hereby reject the refund claim of Rs.1,14,70,210/- (Rupees One Crore Forteen Lakhs Seventy Thousands Two Hundred and Ten only) under Rule 5 of the Cenvat Credit Rules 2004 read with Notification No. 27/2012-CE(NT) dated 18.06.2012, as discussed above." 2.1 Appellant is registered with the Department for providing taxable services under the category of Information Technology Software Services & Business Auxiliary Services. They are also availing the facility of Cenvat Credit in respect of the input services received by them for providing output services as per CENVAT Credit Rules, 2004. 2.2 Appellant on- ⮚ 29.12.2016 filed a refund claim for the period January, 2016 to March, 2016 under Rule 5 of CENVAT Credit Rules, 2004 read with Notification No.27/2012-CE(NT) dated 18.06.2012 for refund of Rs.1,14,70,210/-. ⮚ 28.06.2017 filed a refund claim for the period July, 2016 ....
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....challenged. 3. In absence of challans evidencing the payment of service tax, it is impossible to ascertain whether the amount of refunds claimed by the Appellant is admissible or not. a) Not a requirement under the Refund Notification. b) Credit claimed has never been disputed. 4. The bank statements were found to be incomplete. a) Not a requirement under the Refund Notification. b) Credit claimed has never been disputed. 5. There is no co-relation between the export invoices and the FIRCs. a) Submitted to the Respondent b) Not a requirement under the Refund Notification. 6. In many cases, description of export invoices provided by the Appellant did not find any mention in FIRCs. a) FIRCs are issued by banks and with co-relation and CA certificate, realization of export proceeds is evidenced, and no challenge is ever raised to the export status of the Appellant's services. ⮚ Without prejudice, in case of the appellant's refund claims are found to be ineligible then the appellant is entitled to receive the refund of the Cenvat Credit in cash. 3.3 Learned Authorized Representative reiterates the findings record....
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....vailable for verification was also not disputed by the appellant in the present proceedings. Neither the requisite documents were produced before the original authority nor it was produced before the appellate authority and, therefore, the admissibility or otherwise of the refund claims cannot be ascertained. On this issue, their bold assertion that such original documents are being archived and kept under safe custody and retrieval of such documents is a long drawn process does not help the appellant in any manner. No supporting documents in any form has been made available in these appeals, and therefore, the appellant has not come up with clean hands in filing the present appeals. 13. The findings of the Adjudicating Authority that documentary evidence regarding payment of Service Tax against the input service invoices are not made available to the Department has not been rebutted by the appellant. In the absence of challans etc evidencing payment of Service Tax, it is impossible to ascertain as to whether the amount of refunds that has been claimed by the appellant in their refund claims was actually admissible or not. Even the bank statements submitted by the appellan....
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....efund claims filed in terms of Rule 6 of the Cenvat Credit Rules, 2004 as amended from time to time. The said rule provides for the refund of accumulated credit in the Cenvat account in respect of goods and services exported under bond or undertaking. This rule is very specific and lays down how to determine the quantum of admissible refund from the accumulated credit. It is not a proceeding for the denial of credit available in the Cenvat account of the claimant. Thus even if the refund is denied then also the amount continues to be in the Cenvat account of the claimant. 11. If the case of Revenue is that the activities undertaken by the appellants in present case is not amounting to Export of Service then the proceedings need to be initiated against the appellant for demanding the service tax in respect of the taxable services provided by the appellant. In the present case no such proceedings demanding the Service Tax on these taxable services provided by the appellant have been initiated in terms of Section 73 of the Finance Act, 1994. By not initiating any such proceedings Revenue itself has allowed these taxable services provided as Export of Services. Having done so ....
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.... return which had been duly assessed. In Flock (India), the self-assessed returns had been duly assessed by the Assistant Collector and the issue of classification was answered against the assessee. The aforesaid order of the Assistant Collector came to be affirmed by the Collector (Appeals). It was thereafter and while seeking to prosecute a claim for refund that the assessee sought a review of the aforesaid decisions which had been rendered by the authorities. Negativing the said contention, the Supreme Court observed that once an assessment filed had been duly adjudicated in accordance with the procedure prescribed under the statute, it would be impermissible for the said decision being reviewed or revisited at the stage of consideration of a refund claim. 61. In Priya Blue Industries, the Supreme Court was faced with a situation where a Bill of Entry had been duly assessed and the duty payable in terms of that assessment deposited under protest. It was thereafter that an application for refund came to be preferred. As would be evident from the conclusions ultimately recorded in that decision, the Supreme Court categorically held that once an order of assessment came to....
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....nsidered opinion, it is these principles enunciated in Flock (India), Priya Blue Industries and ITC Limited, which compel and convince us to observe that the impugned order is clearly rendered unsustainable. 65. Undisputedly, the petitioner had submitted self-assessment returns proceeding on the basis that the output services rendered by it would qualify as an 'export of service' and thus it being not exigible to service tax. The aforesaid self-assessment returns remained untouched and had not been questioned by the respondents either in terms of Sections 72 or 73 of the Act. The application for refund of CENVAT credit was founded on the petitioner assessing that it was not liable to pay service tax on services so exported. The accumulation of CENVAT credit came about in light of the various input services received by the petitioner and it having availed credit of service tax paid thereon in terms of Rule 3 of the CCR Rules. It was in respect of the accumulated CENVAT credit that the application for refund came to be made. 66. In our considered view, unless the self-assessed return, as submitted had been questioned, reopened or re-assessed and the assertio....
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....had attained finality and had not been re-assessed or questioned, the refund was clearly liable to be granted automatically. 69. At the stage of consideration of the application for refund, it would be impermissible for the second respondent to question whether the services rendered by the petitioner amounted to an 'export of service' or even dwell upon issues which related to its principal claim of not being liable to pay service tax. The recognition of such a power being available to be wielded while considering an application for refund would clearly be contrary to the principles propounded in ITC Limited. The acceptance of such a contention would amount to recognising the existence of an adjudicatory function inhering in the refund sanctioning authority and would clearly be abhorrent to the principles enunciated in the said decision of the Supreme Court. 70. Since the liability or otherwise of the petitioner to pay service tax would flow and rest only upon the assertions made in the self-assessed return, the various issues which have been gone into by the second respondent while passing the impugned order would clearly be an exercise beyond th....
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....ms of Rule 5 of CENVAT Credit Rules, 2004. 4.7 We also observe that 2 (h) & (i) of Notification No 27/2012-CE (NT) provides as follows: 2. Safeguards, conditions and limitations, - Refund of CENVAT Credit under rule 5 of the said rules shall be subjected to the following safeguards, conditions and limitations, namely:- (h) the amount that is claimed as refund under Rule 5 of the said rules shall be debited by the claimant from his CENVAT credit account at the time of making the claim. (i) in case the amount of refund sanctioned is less than the amount of refund claimed, then the claimant may take back the credit of the difference between the amount claimed and amount sanctioned. In view of the above, in case the refund of the appellant made under Rule 5 is to be rejected then in that case appellant is entitled to take back the credit of the amount for which the refund claim is rejected. In terms of Section 142 (3) of the Central Goods and Service tax Act, 2017, this amount will have to be allowed as cash refund to the appellant. In case of Oil State Industries India Pvt. Lyd. [2022 (8) TMI 310 CESTAT-Mumbai] following has been held: "5. The....