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2016 (5) TMI 999 - AT - Service TaxRefund claim - Rule 5 of the Cenvat Credit Rules, 2004 - quarter July 2012 to September 2012 - Air Travel Agent s Service, Rent-a-cab Scheme Operator s Services and Telecommunication/Internet Telecommunication services - Cenvat Credit availment of July to September 2012 was wrongly shown in the S.T.3 Return for the quarter April to June 2012 for which no revised claim was filed - Held that - even though the receipt of input is in the different period and credit was availed in the subsequent period, the period when the credit was availed is the relevant period and not the period when input/input service was received. In the present case also, it is a claim of the appellant that the Cenvat Credit was availed in July 2012 to September 2012 and not prior to that. The issue of Cenvat Credit/refund in respect of Air Travel Agent Service and Rent-a-cab service, the issue is kept open however the credit/refund in respect of telecommunication service was denied on the ground that the appellant have taken credit twice and the appellant is not contesting the same, hence the same is upheld. The matters are remanded to the adjudicating authority to pass a fresh de novo adjudication by taking into consideration my above observations. - Appeals allowed by way of remand
Issues Involved:
1. Refund claim under Rule 5 of the Cenvat Credit Rules, 2004. 2. Denial of refund/cenvat credit for specific services. 3. Correct period for availing Cenvat Credit. 4. Verification of Cenvat Credit availed. Detailed Analysis: 1. Refund Claim Under Rule 5 of the Cenvat Credit Rules, 2004: The appellants filed for a refund claim under Rule 5 of the Cenvat Credit Rules, 2004, for the quarter July 2012 to September 2012. The adjudicating authority sanctioned the refund partly but rejected part of it on the grounds that the Cenvat Credit pertaining to the period before 1.7.2012 was claimed as "Net Cenvat Credit" for the quarter July 2012 to September 2012. The lower authority contended that the Cenvat Credit shown in the ST-3 Return for the quarter April 2012 to June 2012 should be taken as the correct position of availment of Cenvat Credit. 2. Denial of Refund/Cenvat Credit for Specific Services: In appeal No. ST/86335/2015-Mum, the lower authority denied the refund/cenvat credit for three services: Air Travel Agent's Service, Rent-a-cab Scheme Operator's Services, and Telecommunication/Internet Telecommunication services. The appellants were aggrieved by this and filed appeals before the Commissioner (Appeals), who rejected the appeal in toto, leading the appellants to approach the tribunal. 3. Correct Period for Availing Cenvat Credit: The appellants argued that the Cenvat Credit was taken in the quarter July 2012 to September 2012 and should be considered as such per the definition of net Cenvat Credit under Rule 5 of the Cenvat Credit Rules, 2004. They contended that the Cenvat Credit shown in the ST-3 Return for the quarter April to June 2012 was due to a clerical error and that a revised return could not be filed online after the due date. The appellants were prepared to provide additional evidence to justify their claim that the Cenvat Credit was availed in July to September 2012. 4. Verification of Cenvat Credit Availed: The tribunal observed that the term "Net Cenvat Credit" under clause (B) of Rule 5(1) covers the total Cenvat Credit availed on inputs and input services during the relevant period. The tribunal held that Cenvat Credit availed in any period before 1-7-2012 could not be included in the Net Cenvat Credit for the quarter July to September 2012. The tribunal noted that the lower authorities relied heavily on the quarterly ST-3 return and did not verify whether the Cenvat Credit was availed in the quarter July to September 2012. The tribunal remanded the matter for verification of the Cenvat Credit account and any other corroborative evidence to determine if the Cenvat Credit was indeed availed in the quarter July to September 2012. Conclusion: The tribunal referred to a judgment by the Hon’ble Gujarat High Court in Commissioner Vs. Man Industries (I) Ltd., which held that the period when the credit was availed is the relevant period, not the period when the input/input service was received. The tribunal remanded the matters to the adjudicating authority for fresh de novo adjudication, considering the observations made. The appeals were allowed by way of remand. Pronouncement: The judgment was pronounced in court on 25/04/2016.
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