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TMI Blog2016 (11) TMI 1287X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is no requirement for co-relation between the inputs used and the goods exported - If that be so, the question of restricting the refund claim to the extent of input services used / consumed during the month / quarter seems to be mis-placed - At the same time, find that as per the condition No.5 of the Notification No.5/2006, the calculation which has been worked out by the Commissioner(Appeals) in the impugned order, if is correct, then the refund is liable to be sanctioned to the respondent/assessee. Moreover, I also find that the point regarding one to one co-relationship is not the point stemming from the order-in-original, which was passed by the Assistant Commissioner. It is only at the review stage that the point of one to one c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny reason such use of Cenvat credit is not possible, the manufacturer or output service provider shall be allowed refund of such amount subject to such safeguards, conditions and limitations as prescribed in the notification. This cash refund of such accumulated Cenvat credit is subject to the condition that the manufacturer or output service provider has not claimed drawback under the Customs and Central Excise Duty Drawback Rules, 1995 in respect of the export of finished product or has claimed rebate of duty under Central Excise Rules or has claimed rebate of service tax under export of Service Rules, 2005. In this case the appellant filed refund claim of ₹ 16,37,117/- under Rule 5 of the Cenvat Credit Rules, 2004 for case refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers order in this regard, allowed the department s appeal in respect of the refund of credit of service tax paid on erection, installation, commissioning service used for erection, installation, commissioning of captive power plant on the ground that while the power plant had started functioning on 31/3/2008, the goods in respect of which this refund claim had been filed, had been exported prior to 31/3/2008. The Commissioner (Appeals), thus, set aside the Assistant Commissioners order in respect of refund amount of ₹ 11,08,095/. Against this order of the Commissioner (Appeals), this appeal has been filed. 2. Heard both the sides 2.1 Ms. Rinki Arora, Advocate, the learned Counsel for the appellant, pleaded that while the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he extent, the input services were consumed during the quarter is misplace, that in view of this, the impugned order is not correct. The same may be set aside and appeal allowed. 2.2 Shri Dharam Singh, the learned Departmental Representative, opposed the stay application by reiterating the findings of the Commissioner (Appeals) in the impugned order and pleaded that when the input services, in question, were not used in the manufacture of the goods which had exported, there is no question of grant of cash refund of the credit in respect of the same under Rule 5 of the Cenvat Credit Rules. He, therefore, pleads for rejecting the appeal. 3. I have carefully considered the submissions from both the sides and perused the records. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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