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TMI Blog2017 (1) TMI 642X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee. - E/20021 - 20027 /2014-SM - Final Order No. 21163 - 21169/ 2016 - Dated:- 17-11-2016 - Shri S.S. Garg, Judicial Member Shri H.Y. Raju, Advocate M.S. Srinivasa - For the Appellant Shri Mohammed Yousuf, AR - For the Respondent ORDER The appellant have filed seven appeals and in all the seven appeals identical issue is involved and therefore all the seven appeals are being disposed of by this common order. 2. Briefly the facts of the present case are that the appellant is engaged in the manufacture and export of industrial sewing machine needles falling under Chapter subheading 8452 30 of the First Schedule of CETA 1985. The appellant being a 100% EOU is not in a position to utilise the CENVAT credit availed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 012 dated 20.03.2012 No.426-427/2013 dated 18.9.2013 October - December 2009 Rs.1,37,653/- E/20027/2014 No.57/2012 dated 20.6.2012 No.428-429/2013 dated 18.9.2013 January - March 2011 Rs.1,52,944/- The refund sanctioning authority vide various Orders-in-Original as stated supra after examining the conditions specified by the appellant as required under the said Notification and after considering the verification report dated 11.3.2013 signed by the jurisdictional range officer has allowed the refund of unutilised CENVAT credit in cash of service tax paid on input services. Aggrieved by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n inputs or input services is accepted and not objected to, the refund proceedings in terms of Notification No.5/2006 dated 14.3.2006 under Rule 5 of CCR cannot be used to determine at that stage whether a service or goods is an input service or input or not. Similarly having allowed an assessee to avail the credit and not objected to the same at the time of availment, the question as to whether such goods or services are used in or in relation to the manufacture and export of goods cannot be gone into at the time of considering the refund claim. The learned counsel further submitted that the learned Commissioner in all fairness appreciating the findings of the adjudicating authority and considering the OIA No.136/2009 dated 26.10.2009 in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Job Work Charges * CCE, Nagpur vs. Ultratech Cement Ltd.: 2010 (20) STR 577 (Bom.) 5. Professional Charges * Jeans Knit Pvt. Ltd. vs. CC, Bangalore: 2011 (21) STR 460 (Tri.-Bang.) * M/s. Life Long Indian Ltd. vs. CCE, Delhi-III: 2011-TIOL-832-CESTAT-DEL. 6. Repair and Maintenance (factory building) * Zydus Nycomed Healthcare Pvt. Ltd. vs. Belapur: 2013-TIOL-537-CESTAT-MUM. 7. Repair and Maintenance (Machinery) * M/s. Castrol India Ltd. vs. CCE, Vapi: 2013 (291) E.L.T. 469 (Tri.-Ahmd.) * J.K. Sugar Ltd. vs. CCE, Meerut-II: 2012 (26) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not sustainable in law as all the services involved in the present appeals have been held to be input services by various decisions of the Tribunal and the High Court cited supra. Further, I also note that with regard to all the services the Commissioner (A) in the appellant s own case for the earlier period vide his Order-in-Appeal No.136/2009 dated 26.10.2009 has allowed the refund under Rule 5 of CCR, 2004 and the department has not filed appeal against the same. In view of this situation, the impugned orders are liable to be set aside and I set aside the impugned orders by allowing all the seven appeals with consequential relief, if any. (Operative portion of the Order was pronounced in Open Court on 17/11/2016.) - - TaxTMI - TM ..... X X X X Extracts X X X X X X X X Extracts X X X X
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