9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (9) TMI 566 - AT - Central ExciseRefund of unutilized CENVAT Credit - rejection on the ground that the input services against which the Respondent has filed the refund claim cannot be considered as input services for the output services rendered by them, as the said input services were not directly or indirectly related to the output services - Rule 5 of the Cenvat Credit Rules, 2004 - HELD THAT - The Commissioner (Appeals) has examined the definition of 'input services' and given a very categorical finding regarding admissibility of the credit of 'input services' used in providing the output services by the Respondent - it is found that the Respondent has availed Cenvat credit on the input services used by them in providing the output services. The Department has not raised any objection at the time of availing and utilizing the credit - when no objection was raised at the time of availing and utilizing the credit, the objection regarding the eligibility of credit cannot be raised at the time of filing of the refund claim, to deny the refund claim. Prior to 1.4.2011 the 'input service' definition in Rule 2(l) of the Cenvat Credit Rules, 2004 was very wide as it was an inclusive definition and covered the expression activities relating to business . This covers all such 'input services' used by the Respondent in providing their output services. Accordingly, we hold that there is no infirmity in the impugned order passed by the Commissioner (Appeals) allowing the refund. The impugned order has rightly allowed the appeal filed by the Respondent - Appeal filed by appellant is rejected.
Issues Involved:
1. Eligibility of input services for Cenvat credit. 2. Admissibility of refund claim under Rule 5 of the Cenvat Credit Rules, 2004. 3. Retrospective applicability of amendments to Notification No. 5/2006-CE (NT). Summary: 1. Eligibility of Input Services for Cenvat Credit: The Department contended that the input services claimed by the Respondent did not qualify as 'input services' for the output services rendered, as they were not directly or indirectly related to the development of software. The original authority allowed a partial refund for Management, Maintenance or Repair Service, and Telecommunication Service, but rejected the refund for other services such as Commercial or Industrial Construction, Erection, Commissioning or Installation, and others. The Commissioner (Appeals) allowed the refund, leading to the Department's appeal. 2. Admissibility of Refund Claim Under Rule 5 of the Cenvat Credit Rules, 2004: The Respondent filed a refund claim under Rule 5 of the Cenvat Credit Rules, 2004, as they were unable to utilize the Cenvat credit availed on input services. The original authority rejected the claim, but the Commissioner (Appeals) remanded the case for reconsideration. The Assistant Commissioner partially sanctioned the refund, which was again appealed by the Respondent. The Commissioner (Appeals) allowed the refund, which led to the present appeal by the Department. 3. Retrospective Applicability of Amendments to Notification No. 5/2006-CE (NT): The Respondent argued that Notification No. 5/2006-CE (NT) was amended by Notification No. 7/2010-CE (NT) to substitute the words "used in" with "used in or in relation to" and "used for," applicable retrospectively from 14.03.2006. The Board's letter clarified that these amendments were meant to resolve disputes in pending cases. The Commissioner (Appeals) found that the input services were used for providing output services and allowed the refund, which the Department contested. Judgment: The Tribunal observed that the Commissioner (Appeals) had provided a specific finding on the eligibility of the input services for refund. The Tribunal held that the eligibility of Cenvat credit could not be questioned at the time of filing the refund claim if it was not questioned when availed and utilized. The Tribunal relied on Board Circular No. 120/01/2010-ST and various judicial decisions supporting the Respondent's contention. The Tribunal found no infirmity in the impugned order and upheld the refund granted by the Commissioner (Appeals), rejecting the Department's appeal. Conclusion: The Tribunal dismissed the Department's appeal and upheld the refund of Rs. 88,09,859 sanctioned to the Respondent, affirming the retrospective applicability of the amendments and the eligibility of input services for Cenvat credit.
|
