2015 (10) TMI 2151 - AT - Service Tax

Refund of CENVAT Credit - Export of Services - Revenue denied refund on grounds that it is specifically governed by Notification No.9/2009-ST and appellant should have chosen that route instead of submitting its claim under Rule 5 of Cenvat Credit Rules, 2004 - Appellant contended that such provision does not take away the right to get refund under Rule 5 of Cenvat Credit Rules, 2004 - Held That - Rule 5 is an integral part of statute and thus supplemental provision does not override fundamental provision - Revenue ought not to deny the route of processing refund through section 11B of the Central Excise Act, 1944 - Refund is due to and admissible to appellant - Decided in favour of assessee.

Summary

Issues:
1. Claim of refund on accumulated Cenvat credit for export of services denied by Revenue.
2. Interpretation of Notification No.9/2009-ST regarding refund provisions.
3. Applicability of Rule 5 of Cenvat Credit Rules, 2004 for refund application.
4. Legal infirmity in adjudication leading to the appeal being allowed.

Issue 1:
The appellant claimed a refund on accumulated Cenvat credit for providing export services, which the Revenue denied citing Notification No.9/2009-ST. The appellant argued that the credit should be refunded under Rule 5 of Cenvat Credit Rules, 2004.

Issue 2:
The appellant contended that while Notification No.9/2009-ST allows for claiming refund for specified services, it does not preclude the right to refund under Rule 5. The Revenue supported the denial based on the specific provision of the notification.

Issue 3:
The Tribunal analyzed the spirit of the notification, highlighting that it provides options for units in SEZ to avail taxable services tax-free. The appellant, as a service recipient, paying service tax and entitled to Cenvat credit, should not be barred from claiming refund under Rule 5.

Issue 4:
Referring to Section 83 of the Finance Act, 1994, the Tribunal emphasized that refund provisions are governed by Section 11B of the Central Excise Act, 1944. It concluded that Rule 5 of Cenvat Credit Rules, 2004, being integral to the statute, should not be overridden, and the appellant is entitled to the refund. The appeal was allowed, setting aside the adjudication suffering from legal infirmity.

This judgment addressed the denial of a refund claim on accumulated Cenvat credit for export services, examining the interpretation of Notification No.9/2009-ST and the applicability of Rule 5 of Cenvat Credit Rules, 2004. The Tribunal emphasized the right of the appellant to claim a refund under Rule 5 despite the provisions of the notification. By invoking Section 83 of the Finance Act, 1994, and Section 11B of the Central Excise Act, 1944, the Tribunal clarified that the appellant was entitled to the refund, overturning the denial by Revenue and allowing the appeal due to legal infirmity in the adjudication process.