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2021 (12) TMI 676 - AT - Service TaxRefund of accumulated/unutilised Cenvat Credit of Service Tax - denial on the ground of no nexus between the input services and the export services - initiation of proceedings under Rule 14 of CCR - Rule 5 of Cenvat Credit Rules - HELD THAT - It is well settled legal position that denial of Cenvat Credit can be done only by issuing notice under Rule 14 ibid. Having allowed the Cenvat Credit or by not denying the same, the department cannot reject refund of Cenvat Credit under Rule 5. It is well settled principle that availment of Cenvat Credit, its utilisation and refund are different aspects dealt with under CCR, 2004. Rule 5 provides for any refund of Cenvat Credit and nowhere in this Rule there is a provision to determine the correctness about the availment of Cenvat Credit. Its only Rule 14 ibid which provides for recovery of irregularly availed Cenvat Credit. It is well settled principle that availment of Cenvat Credit, its utilisation and refund are different aspects dealt with under CCR, 2004. Rule 5 provides for any refund of Cenvat Credit and nowhere in this Rule there is a provision to determine the correctness about the availment of Cenvat Credit. Its only Rule 14 ibid which provides for recovery of irregularly availed Cenvat Credit. There are force in the submission of learned Counsel that since availment of credit has not been questioned by the department in terms of Rule 14 ibid, the refund benefit cannot be denied on the ground of non-establishment of nexus between input and the output services. Indisputably, in the refund proceedings under Rule 5 ibid as amended, any such attempt to deny or to vary the credit availed during the period under consideration is not permissible. If the quantum of the Cenvat Credit is to be varied or to be denied on the ground that certain services do not qualify as input services or on the ground of no nexus , then the same could have been done only by taking recourse to Rule 14 ibid - since the provisions of Rule 14 ibid have not been invoked, the refund of Cenvat Credit as claimed by the Appellant under Rule 5 ibid cannot be denied to them and the same is admissible. Appeal allowed - decided in favor of appellant.
Issues Involved:
Denial of refund of accumulated/unutilised Cenvat Credit of Service Tax under Rule 5 of Cenvat Credit Rules. Issue-Wise Detailed Analysis: 1. Denial of Refund of Accumulated/Unutilised Cenvat Credit: The appeals challenge the order dated 28/05/2018 by the Commissioner (Appeals-Thane), GST & Central Excise, Mumbai, which denied the refund of accumulated/unutilised Cenvat Credit of Service Tax under Rule 5 of the Cenvat Credit Rules. The Appellant, a Captive Business Process Outsourcing Company, primarily exports services and receives consideration in convertible foreign exchange. They procured various input services and claimed Cenvat Credit as per Rule 2(l) of the Cenvat Credit Rules, 2004. Due to the inability to utilize the entire Cenvat Credit, they filed a refund claim under Rule 5, CCR 2004 r/w Notification No. 27/2012-CE (NT) dated 18/06/2012 for the period between April 2013 to March 2016, totaling ?70,59,98,605/-. The Adjudicating Authority sanctioned a refund of ?68,90,23,173/- and rejected ?1,69,75,431/-. The Commissioner (Appeals) partly allowed the appeals, granting a refund of ?4,19,061/- and rejecting ?1,65,56,370/- on the ground that the Appellant failed to produce evidence of the nexus between the input services and their output services. 2. Nexus Between Input Services and Output Services: The Appellant argued that their case is covered by the Tribunal's order dated 22.01.2020 in their own case, which allowed refunds on identical facts for different periods. They contended that the department cannot deny the refund of Cenvat Credit under Rule 5 by alleging no nexus between the output and input services. The Tribunal has previously ruled that denial of Cenvat Credit can only be done by issuing a notice under Rule 14. Since the department did not question the availment of credit under Rule 14, the refund benefit cannot be denied on the ground of non-establishment of nexus. The Tribunal in the Appellant's own case for the periods April 2012 to March 2013 and April 2016 to September 2016 set aside the denial of refund on the ground of non-establishment of nexus after discussing Rule 5 in detail. 3. Legal Precedents and Interpretation of Rule 5: The Tribunal referred to its earlier decisions, including the case of Maersk Global Services Centre (I) Pvt. Ltd., which extended the refund benefit by stating that the establishment of nexus between input and output services cannot be insisted upon under the amended Rule 5. The Tribunal also cited the decision in M/s Cross Tab Marketing Service Pvt Ltd., which held that the amended Rule 5 does not require the establishment of any nexus between input and export services. The rule only provides that the admissible refund will be proportional to the ratio of export turnover to total turnover during the period under consideration and the net Cenvat Credit taken during that period. 4. Conclusion and Final Order: The Tribunal concluded that since the provisions of Rule 14 were not invoked, the refund of Cenvat Credit as claimed by the Appellant under Rule 5 cannot be denied and is admissible. Consequently, the appeals filed by the Appellant were allowed with consequential relief, if any. (Order pronounced in the open Court on 16.12.2021)
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