2011 (10) TMI 400 - AT - Central Excise

100% EOU engaged in manufacture of cotton yarn and knitted fabrics - Refund claim of Credit denied on the ground that power plant had started functioning on 31/3/08, the goods in respect of which this refund claim had been filed, had been exported prior to 31/3/08 - Held That - No one to one relation is required to be established between the availment of Cenvat credit in respect of same inputs and input services and their use in the manufacture of final products, that the appellant were eligible for Cenvat credit in respect of input services as soon as the same had been received by them and payment for the same had been made by them. Decided in favour of assessee.

Summary

Issues:
1. Refund claim of accumulated Cenvat credit under Rule 5 of the Cenvat Credit Rules, 2004.
2. Dispute over refund of Cenvat credit for service tax paid on GTA service and erection, installation, commissioning service.
3. Appeal against the Commissioner (Appeals) order regarding refund of Cenvat credit.

Analysis:
1. The appellant, a 100% EOU engaged in manufacturing cotton yarn and knitted fabrics, availed Cenvat credit for Central Excise Duty paid on inputs and Service Tax paid on input services. They filed a refund claim of Rs. 16,37,117 under Rule 5 of the Cenvat Credit Rules, 2004. The Assistant Commissioner sanctioned a refund of Rs. 15,35,068 but rejected the balance amount of Rs. 1,02,049. The Commissioner reviewed the order and rejected a portion of the refund claim based on specific grounds raised by the Department.

2. The Commissioner (Appeals) upheld the refund of Cenvat credit for service tax paid on GTA service for outward freight but disallowed the refund for service tax paid on erection, installation, commissioning service for a captive power plant. The Commissioner found that the goods for which the refund claim was made had been exported before the power plant started functioning. The appellant filed an appeal against this decision.

3. During the hearing, the appellant argued that a direct correlation between the availed Cenvat credit and the goods exported is not required for a cash refund under Rule 5. They cited a Tribunal judgment supporting their position. The Departmental Representative opposed the appeal, emphasizing the lack of use of input services in manufacturing the exported goods. The Tribunal noted that the dispute was previously settled in favor of the appellant in a similar case and found no requirement for a one-to-one relationship between input services and exported goods. Consequently, the Tribunal waived the pre-deposit requirement for hearing the appeal and stayed the recovery of the demanded Cenvat credit and interest until the appeal's final disposal.