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2022 (4) TMI 306 - AT - Service Tax100% software Export Oriented Unit - refund of unutilised cenvat credit - Section 11B of the Central Excise Act, 1944 read with Section 83 of Finance Act, 1944 - HELD THAT - Almost all input services used by the assessee in the case in hand have been considered by various Benches as well as higher judicial fora. Larger Bench of this Tribunal in the case of CCE CST, BENGALURU SERVICE TAX-I VERSUS M/S. SPAN INFOTECH (INDIA) PVT. LTD. 2018 (2) TMI 946 - CESTAT BANGALORE has held that insofar as refund claims under Rule 5 ibid are concerned, the same have to be taken as the end of the quarter in which FIRCs received, if the refund claims are filed on a quarterly basis. The assertions of the learned advocate are found to be correct insofar as his contentions that the Revenue has not disputed the eligibility or otherwise of the cenvat credit is concerned. Hence, Revenue cannot be disputed the eligibility when the refund of the input service credit is claimed. Appeal allowed - decided in favor of appellant.
Issues:
Refund claim rejection under Section 11B of the Central Excise Act, 1944 read with Section 83 of Finance Act, 1944; Time-barred refund application for the period 01/07/2006 to 14/02/2007; Eligibility of input services for refund; Department's right to question eligibility under Rule 5 of the CENVAT Credit Rules, 2004. Refund Claim Rejection: The appellant, a software Export Oriented Unit, filed a refund application for unutilized cenvat credit for the period July 2006 to March 2007. Despite detailed submissions, the refund claim was rejected under Section 11B of the Central Excise Act, 1944, and Section 83 of the Finance Act, 1944, by the Order-in-Original dated 31.07.2008. The Commissioner(Appeals) partially allowed the appeal for the period 15/02/2007 to 31/03/2007 but held the earlier period refund application as time-barred. Both the assessee and Revenue filed cross-appeals against this decision. Eligibility of Input Services for Refund: The advocate for the assessee contended that the Revenue cannot question the eligibility of input services while adjudicating the refund claim under Rule 5 of the CENVAT Credit Rules, 2004. Referring to various Tribunal decisions, the advocate argued that once the cenvat credit on input services is availed without objection from the Revenue, they cannot deny refunds based on ineligibility. The Tribunal agreed with this argument, citing precedents and set aside the denial of refund, allowing the appeal of the assessee. Department's Right to Question Eligibility: The Revenue, supported by the learned AR, relied on the decision of the Hon'ble High Court of Andhra Pradesh in a specific case. However, the Tribunal noted that the Revenue's appeal lacked merit based on the ruling of the jurisdictional High Court, which clarified the time-limit for claiming refunds under Rule 5 of the CENVAT Credit Rules. As the Department's appeal lacked merit, it was dismissed. Conclusion: The Tribunal dismissed the Department's appeal, citing the jurisdictional High Court's ruling on time limits for refund claims. The Tribunal also upheld the advocate's argument that the Revenue cannot dispute eligibility when a refund of input service credit is claimed. Consequently, the denial of refund was set aside, and the appeal of the assessee was allowed with any consequential relief. Both appeals were disposed of accordingly on 31/03/2022.
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