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TMI Blog2010 (12) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... engaged in manufacture of De-oiled cakes of Soya bean, Rapeseed and Castor falling under Chapter 15 of Central Excise Tariff Act, 1985. They filed refund claims for different periods under Rule 5 of CENVAT Credit Rules, 2004 and also under the provisions of Notification No.41/2007-ST, dt.6.10.07. Rule 5 of CENVAT Credit Rules, 2004 allows refund of accumulated CENVAT Credit in respect of input or input service used in manufacture of goods exported. Notification No.41/2007-ST, dt.6.10.07 provides for refund of Service Tax paid on specified input services in respect of exports. 2. Aggrieved by the rejection of refund claims by the Assistant Commissioner, respondents filed appeal before Commissioner (Appeals), who vide OIA No.91 to 97/200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumulated input service credit is not admissible. He held that the statutory definition of input service as defined in Rule 2(1) of CENVAT Credit Rules, on the basis of which the respondents accumulated credit, cannot be ignored. The input service for which the refund claim has been filed are beyond the place of removal and therefore not covered by the definition of input services. Aggrieved by this order, the respondents filed appeals before learned Commissioner (Appeals). The learned Commissioner (Appeals), in his order, No.329-335/2009, dt.14.9.09 upheld the view taken by the Assistant Commissioner that he was entitled to verify the eligibility of the CENVAT Credit. Further, he also held that place of removal in the case of export is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m in respect of period prior to 14.4.03 was incorrect. 5. As regards the appeals filed in respect of impugned order in the second round of litigation, the learned SDR submitted that only input services used in the activities relating to business used by the manufacturer in relation to manufacture of final product and clearance of the final product are eligible. Once the final product is cleared from place of removal, the question of benefit of input service does not arise. He relied upon the decision of the Tribunal in case of M/s NHK Springs as reported in 2007 (7) STR 63 (Tri-Delhi), to support his contention that the expression clearance of final product from the place of removal has to be understood in the context of the preceding wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund which was allowed by Commissioner (Appeals). For this purpose, learned Counsel relied upon the decision of this Tribunal in the case of M/s Rawmin Mining Indus. Ltd. Vs. CCE Bhavnagar-I as reported in 2009 (13) STR 269 (Tri-Ahd). We do not think that the decision of the Tribunal in the case of M/s Rawmin Mining Indus. would help the appellant since in that case the Tribunal had taken note of the detailed correspondence between the department and the assessee and had observed that from the correspondence, it becomes clear that whether the appellants have availed CENVAT Credit correctly or not, should have been raised either by issue of show cause notice or taking that as one of the grounds for rejecting the claim. In the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s regards the submission that Notification No.5/2006-CE, dt.14.3.06, we notice that this aspect was not considered by both the lower authorities. Therefore, as regards refund claim for the period prior to the date of Notification No.5/2006-CE, we have to remand the matter to original adjudicating authority for consideration. 10. As regards the appeal of Revenue against the OIA dt.14.9.09, we find that Hon'ble High Court of Mumbai in the case of M/s Repro India Ltd. Vs. UoI 2009 (235) ELT 614 (Bom), had considered the eligibility of CENVAT Credit and its refund. Hon'ble High Court held that the CENVAT Credit is available in respect of input/input services used in manufacture of exempted goods if they are exported. Hon'ble High Court obse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the matter was remanded to the original adjudicating authority to see at what stage the ownership was transferred in view of the Circular issued by the Board. In the case of M/s Vikram Ispat also, the services under consideration were subscription paid to industry association, security services, rent-a-cab service and mobile telephone service. In the case of M/s Bhilai Engg. Corpn. Ltd., it is only stay order and not a final decision. In the case of M/s Maruti Suzuki Ltd., the issue under consideration was input credit in manufacture and not exports. On the other hand, we find reliance of the respondent on the decision of the Tribunal in the case of M/s Cadila Healthcare Ltd. 2010 (17) STR 134 (Tri-AHD), M/s Dell International Services (I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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