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TMI Blog2012 (9) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... e under a different enactment that is, the Central Excise Act, 1944, and a different provision namely Section 94 of the Finance Act, 1994 - there is no restriction placed under the said Rules, the appellant cannot be prevented from claiming refund of unutilized CENVAT credit in respect of any input or input services, if such refund is otherwise due - appeals are allowed by way of remand to the original authority - E/389-390/2011 - 1097-1098/2011 - Dated:- 28-9-2011 - Dr. Chittaranjan Satapathy, J. REPRESENTED BY : Shri M. Karthikeyan, Advocate, for the Appellant. Shri A.B. Niranjan Babu, SDR, for the Respondent. [Order]. Heard both sides. 2. The appellants are using Technical Testing and Analysis Service in their EOU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a separate scheme notified under Notification No. 41/2007 and one of the conditions under the said notification also states that refund of service tax paid on such specified services cannot be claimed except under that notification vide clause (f) of the First Proviso to the said Notification. 4. After considering submissions from both sides, I find that the condition that refund of service tax paid on specified services cannot be claimed except under Notification No. 41/2007 has been incorporated in the said notification. The appellants in this case had not claimed refund under the said notification in the first instance and only at the instance of the Department they have subsequently filed the refund claims under the said notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on the scope of refunds to be granted under Rule 5. Such restriction has to be built in either under Rule 5 itself or under an independent provision under the CENVAT Credit Rules, 2004. Since there is no restriction placed under the said Rules, the appellant cannot be prevented from claiming refund of unutilized CENVAT credit in respect of any input or input services, if such refund is otherwise due. Accordingly, the impugned orders are set aside and both the appeals are allowed by way of remand to the original authority to consider the original claim of the appellants for refund of unutilized credit of technical testing and analysis service with reference to the provisions of CENVAT Credit Rules, 2004, and Notification No. 5/2006 issued ..... X X X X Extracts X X X X X X X X Extracts X X X X
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