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TMI Blog2016 (1) TMI 1133X X X X Extracts X X X X X X X X Extracts X X X X ..... 'relevant date' shall be the date on which foreign remittance has been received and the period of one year for filing refund claim shall be reckoned from date of receipt of foreign exchange. However this aspect has not been verified by the lower authority as the issue under dispute was whether the limitation is applicable for the refund under Rule 5, therefore this matter of refund of ₹ 81,80,550/- which was rejected on time bar needs to be re-examined and therefore same is remanded to the Adjudicating authority. Cenvat credit - disallowance in respect of input services and corresponding refund - inadmissible input services - Held that:- we agree with the Ld. Commissioner(Appeals) that when there was no proposal in the show cause n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... totally amounting to ₹ 2,12,45,060/- under Rule 5 of Cenvat Credit Rules, 2004 in respect of unutilized input service credit availed during the period April, 2007 to March, 2008. The said four refund claims were rejected by the Asstt. Commissioner vide his Order-in-original No. 25/R/STC/09 dated 23/2/2009. The assessee appealed against the said order dated 23/2/2009, which was dismissed by the Commissioner(Appeals) vide Order-in-Appeal No. PI/VSK/ 161-162/09 dated 29/6/2009. The CESTAT, Mumbai vide it's Order No. A/533/13/CSTB/C-I 6/3/2013/1/4/2013, while deciding the assesse s appeal, it was held that the assessee were eligible for the refund of ₹ 2,14,45,060/- claimed by them on account of export of exempted service subjec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scope of Show Cause Notice. Aggrieved by the said impugned order dated 20/1/2015, assessees as well as Revenue both have filed these appeals. 3. Shri. R.J. Naik, Ld. Counsel for the assessee submits that as regard rejection of refund claim of ₹ 81,80,550/- on time bar, the refund is under Rule 5 of Cenvat Credit Rules, 2004. In such refund claim limitation of one year is provided for filing refund claim is procedural requirement in terms of Notification No. 5/2006-CE(NT) dated 14/3/2006 but said time limitation is not provided in the Rule 5 therefore refund cannot be rejected merely on the ground of time bar. He submits that Adjudication order was passed in denovo adjudication in pursuance of this Tribunal order dated 1/4/2013. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .R. 437 (Tri. - Del.)] (b) Alar Infrastructures Pvt. Ltd. Versus Commissioner of C. Ex., Delhi-I[2015 (38) S.T.R. 1087 (Tri, - Del.) (c) CC, CE ST Vs. Hundai Motors India Pvt Ltd[2015 (39) STR 984 (AP)] As regard Revenue's appeal in relation to disallowance of Cenvat credit of ₹ 17,55,166/- and corresponding refund of ₹ 16,23,447/-, he submits that the issue of admissibility of the services was not raised in the show cause notice therefore issue which is not in the show cause notice cannot be entertained by the Adjudicating authority and on this count only, Ld. Commissioner(Appeals) has allowed appeal which does not require any interference. 4. Shri. D. Nagvenkar, Ld. Addl. Commissioner(A.R.) for the Reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that in case of refund towards export 'relevant date' shall be the date on which foreign remittance has been received and the period of one year for filing refund claim shall be reckoned from date of receipt of foreign exchange. However this aspect has not been verified by the lower authority as the issue under dispute was whether the limitation is applicable for the refund under Rule 5, therefore this matter of refund of ₹ 81,80,550/- which was rejected on time bar needs to be re-examined and therefore same is remanded to the Adjudicating authority. 6.1 As regard the Revenue's appeal on the issue of disallowance of Cenvat Credit of ₹ 17,55,166/- in respect of input services and corresponding refund of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng authority has disallowed the cenvat credit i.e. the co-relation of use of input service for providing output service was not taken up in the show cause notice dated 29-9-2008. This issue was also not discussed in the earlier Order-in-Original dated 23-2-2009. Therefore, the issue which was not the subject matter of the original adjudication proceeding cannot be taken up in the denovo adjudication proceedings without issuing a show cause notice or without giving an opportunity to Appellants in his impugned order dated 08-08-2013, in de-novo adjudication proceedings, has also not discussed or given any reasons while concluding that the services in question were not used for providing output services. I also find that the CESTAT in their or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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