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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 ..... 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 97/2008(Ahd-III)CE/KCG/Commr(A), dt.5.9.08 held that refund of CENVAT Credit cannot be denied to the respondents even if the goods are chargeable to Nil rate of duty in the case of goods exported and held that they are eligible for refund under Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut 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 Port. Therefore, CENVAT Credit of input service availed upto the place of removal is eligible in terms of Rule 2(1) of CENVAT Credit Rules, 2004. This order is also under challenge by the Revenue. 4. Learned SDR appearing on beh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 words, which refer to service used by the manufacturer in relation to the manufacture and clearance of final products, from the place of removal. It was submitted that the word clearance under Rule 2 of CENVAT Credit Rules, 2004 would on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri-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 case, as rightly observed by both the lower authorities, refund claim was simply rejected on the ground that finished goods manufactured by the appellant were exempted from Excise duty and therefore they were not eligible for CENVA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 observed that Rule 6(6)(v) of CENVAT Credit Rules, 2004 has been consciously and expressly enacted with the specific objective to ensure that duty is not levied even on inputs going to the export products. Hon'ble High Court als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration 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 (India) Pvt. Ltd 2010 (17) STR 540 (Tri-Bang) are relevant and in those cases, the services availed by the respondent are in respect of businesses and it was from the place of removal. In all cases here, exports were made on FO ..... X X X X Extracts X X X X X X X X Extracts X X X X
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