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2016 (3) TMI 10 - AT - Service TaxRefund of service tax - Exemption on services provided to SEZ authorised operations - notification no. 40/2012 ST - 100% services are exported - Commissioner (Appeals) held that since the appellant have availed the Cenvat credit on specified services they have violated the condition provided under clause 2(g) of the Notification No. 40/2012-ST, therefore they are not entitled for the refund as provided under the said notification. - Held that - since the appellant had reversed the credit even before making application of refund and under the admitted fact that same was not utilized by them it is considered as if Cenvat credit not availed and therefore condition provided under clause 2(g) of the Notification No. 40/2012-ST stand complied with. - However, interest from the date of taking credit till the date of reversal is applicable - Decided partly in favor of assessee.
Issues:
Refund claim rejection based on availed Cenvat Credit under Notification No. 40/2012-ST. Analysis: The appeal challenged the rejection of a refund claim due to availing Cenvat Credit as per Notification No. 40/2012-ST. The Commissioner(Appeals) upheld the rejection order, leading to the current appeal. The appellant claimed they reversed the credit before filing the refund claim, arguing it was as if no credit was availed. They cited the Bombay Dyeing Manufacturing Co. Ltd. judgment, stating that reversing credit without utilization equates to not taking credit. The Revenue contended that interest should apply from the date of taking credit until its reversal, as per the Union of India Vs. Ind Swift Lab. Ltd. judgment. The Tribunal considered both arguments and reviewed the record. The Tribunal noted that both the lower adjudicating authority and the Commissioner(Appeals) found the appellant in violation of the condition under clause 2(g) of Notification No. 40/2012-ST for availing Cenvat credit on specified services. However, the appellant argued that since they reversed the credit before applying for a refund, it should be considered as if no credit was taken, aligning with the Bombay Dyeing Manufacturing Co. Ltd. judgment. The Tribunal agreed with this interpretation, stating that the reversal of credit before utilization meant the credit was not actually availed, satisfying the condition under the notification. Nevertheless, the Tribunal concurred with the Revenue's argument that interest should apply from the date of credit availment to its reversal, following the Union of India Vs. Ind Swift Lab. Ltd. judgment and Rule 14, which mandates interest payment on the credit regardless of utilization. Thus, the Tribunal remanded the matter to the original adjudicating authority for a fresh decision, emphasizing that the appellant must pay the required interest to be eligible for the refund, as per the Supreme Court judgment and Rule 14. In conclusion, the Tribunal ruled in favor of the appellant's argument that reversing the credit before utilization equated to not availing the credit, satisfying the condition under the notification. However, the Tribunal also upheld the requirement for the appellant to pay interest on the credit from the date of availing it until its reversal, in accordance with legal precedent and Rule 14. The matter was remanded for further adjudication with the condition that the appellant pays the necessary interest to qualify for the refund.
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