9911796707
TMI Blog2016 (6) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the learned Commissioner has relied upon various decisions of the Courts and the Tribunals and has also mentioned about the nexus. Therefore in view of the well reasoned finding of the Commissioner (Appeals), I am of the considered opinion that the findings given by the Commissioner (Appeals) are sustainable and there is no infirmity in it and the same is upheld. Eligibility for refund of unutilized Cenvat credit - Rule 5 of the Cenvat Credit Rules 2004 - clearances made to other 100% EOU on inter unit transfer - Held that:- this Tribunal has allowed the refund claim filed by the respondent in its own case reported in [2015 (6) TMI 377 - CESTAT BENGLALORE]. Further the Hon’ble Supreme Court in the case of Virlon Textile Mills Ltd. Vs. CCE, Mumbai [2007 (4) TMI 6 - SUPREME COURT OF INDIA] has held that deemed export are equivalent to physical export. The Hon’ble High court of Gujarat in the case of CCE Vs. NBM Industries [2011 (9) TMI 360 - GUJARAT HIGH COURT] has held that refund could not be denied on the ground that it was case of deemed export. Since the Apex Court as well as the High Courts have specifically held that deemed exports are equivalent to physical export and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Cenvat Credit Rules 2004. The respondents filed refund claims of unutilized cenvat credit under Rule 5 of the Cenvat Credit Rules 2004 in respect of inputs and input services such as Business Auxiliary Service, Chartered Accountant service, C&F Service, Courier Service, GTA, Repair and Maintenance Service, Renting of immovable property service, Technical Testing and Analysis Service, Telephone service, Transport of Goods by Air, Online Information and Database access service, Manpower Recruitment and Supply Service, Rent a Cab service etc. The respondent has also sought refund of unutilized cenvat credit on account of clearance to other 100% EOU on inter unit transfer on the ground that the same is covered under Rule 5 of the Cenvat Credit Rules 2004. The adjudicating authority has partially allowed the refund with regard to certain services but declined to grant refund in respect of clearances made to 100% EOU on inter unit transfer and the same was held as not export. The adjudicating authority only allowed refund with regard to actual physical export. Further the adjudicating authority has disallowed the refund of cenvat credit in respect of certain input services on the grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds in the already filed appeal on the ground that the additional ground which is now sought to be included in grounds of appeal has not been allowed by the Commissioner who reviewed the order authorizing the Deputy Commissioner to file the present appeal and now the Revenue cannot include this ground without proper authorization or review order. He further submitted that the clearances made by the respondent to EOU should be considered as export for the purpose of refund and for this he relied upon the following decisions: a) M/s. Gujarat Fashions [2014 (301) ELT 411 (Tri.-Ahmd.)] b) Amitex Silk Mills P Ltd. [2007 (216) ELT 589 upheld by SC 2010 (254) ELT A98 (SC) c) Final Order No. 21747-21749/2014 d) Apotex Research P Ltd. & other Vs. CST 2014-TIOL-1836-CESTAT-Bang e) Shilpa Copper Wire Industries [2011 (269) ELT 17 (Guj.)] 4. I have heard the learned counsel for both the parites and perused the records. The issues which are to be decided by me are the following:- (1) Whether the input credit availed on various services by the respondent would fall under the definition of input services/input as per the definition existing prior to 01.04.2011 and whether there is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 2(l) ibid. Covered by case law Coca Cola India Pvt. Ltd. Vs. CCE 2009 (242) ELT 168 (HC) 2 Chartered Accountant Services Professional charges paid for Statutory Audit and certification charges Specifically covered under the definition of input service under Rule 2(l) of the Cenvat Credit Rules, 2004. This is a valid input service and covered by the following decision: Commr. of C.Ex. Meerut-II V. Hindustan Coca-Cola Beverages Ltd. 2011 (27) ELT 314 (Tri.-Del.) 3. Chartered Engineering Service Chartered Engineering Service towards safety and environment matters and employees training with respect to quality, production The said input service is an essential input service. Covered by case law Dell International Services India Private Limited V. CCE Bangalore 2010 (17) STR 540 (Tri.-Bang.) 4 Clearing and Forwarding Services This is clearance charges meant for clearing imported raw material, components, consumables etc required for production Specifically covered under the definition of input service under Rule 2(l) of the Cenvat Credit Rules, 2004. This is a valid input service and covered by the following decision: Adani Pharmachem (P) Ltd Vs. CCE 2009 (238) ELT 179 (Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , operational & systems audit The said input service is an essential input service. Covered by the case law Dell International Services India P Ltd Vs CCE 2010 (17) STR 540 (Tri-Bang) 13 Telephone Services Telephone & mobile charges incurred towards communication of production and related staff who are involved in the activity of production, so as to enable to carry out the production activity This is a valid input service by definition and also covered by the following decision: CCE Vs Delloitte Services India Pvt. Ltd. 2008 (11) STR 266 (Tri.) 14 Technical Testing and Analysis Services Testing charges incurred for material and measuring instrument This is a valid input service by definition and also covered by the following decision: CCE Vs. Cadila Healthcare Ltd. 2013 (30) STR 0003 (Guj.) 15 Rent-a-Cab Scheme Operators Services The Company procures transport/cab facilities from vendors for the customers to visit the factory for product inspection and confirmation of orders This is a valid input service by definition and also covered by the ratio of High Court of Karnataka judgment in the case of Comr. Of C Ex Bangalore III V Stanzen Toyotetsu India (P) Ltd. 2011 (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court. He further relied upon the decision of Commissioner of Central Excise and Customs Vs. Anita Synthetics Pvt. Ltd. [2014 (306) E.L.T. 133 (Guj.)] wherein the same issue was involved and the Hon'ble Gujarat High Court in para 5 has observed as under: "5. However, in the facts and circumstances of the case and when on facts of the present case, the issue involved is squarely covered by the decision of this Court, which is reported to be confirmed by Hon'ble the Supreme Court and the aforesaid is not as such disputed by the learned Counsel appearing on behalf of the appellant, instead of remanding the matter to CESTAT, we have considered the issue on merits and whether the decision in the case of Shilpa Copper Wire Industries (supra) would be applicable to the present case or not. In the case of Shilpa Copper Wire Industries (supra), this Court has specifically held that clearance made by one 100% EOU to another 100% EOU, which are deemed exports are to be treated as physical exports for the purpose of entitling refund of unutilized Cenvat credit contemplated under the provisions of Rules 5 of the Cenvat Credit Rules, 2004. Similar is the question proposed in the present appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
