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TMI Blog2017 (3) TMI 518X X X X Extracts X X X X X X X X Extracts X X X X ..... f Service Rules, 2005 and refund of CENVAT Credit u/r 5 of the CCR are mutually exclusive schemes - Appeal dismissed - decided against appellant. - ST/86453/16 - A/86121/17/SMB - Dated:- 28-2-2017 - Shri Raju, Member (Technical) Shri Prasad Paranjape, Advocate for Appellant Shri A.B. Kulgod, AC (AR) for Respondent ORDER Per Raju The appellant, M/s 3D PLM SOFTWARE Solutions Ltd., were engaged in export of IT services. The appellant paid Service Tax on the exported services and claimed rebate thereof. During the same period, the appellant had also claimed refund of CENVAT Credit under Rule 5 of the Cenvat Credit Rules. The claim of rebate of Service Tax paid on exported services was disallowed by the lower adjudicatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the turnover 1 Cenvat credit availed (A) 40,55,614 40,55,614 2 Value of services exported (B) 31,50,31,722 30,19,76,450 3 Value of services provided to recipients in India (C) 4,78,141 4,78,141 4 Value of total turnover (D)=(B)+(C) 31,55,09,863 30,24,54,591 5 Maximum refund available based on proration method prescribed under Notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the calculation given above shows that the refund claimed by them did not change as a result of inclusion of such invoices. Moreover while there is a bar in including the total export turnover on which Service Tax has been paid under the Notification issued under Rule 5 of the Cenvat Credit Rules, there is no such bar in the Notification No. 12/2005 issued under Rule 5 of the Export of Service Rules, 2005. 4.1 Rule 5 of the Cenvat Credit Rules reads as under: - Where any input or input service is used in the manufacture of final product which is cleared for export under bond or letter of undertaking, as the case may be, or used in the intermediate product cleared for export, or used in providing output service which is exported, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se Rules in respect of such duty or rebate of Service Tax under Export of Service Rules, 2005 in respect of such taxes. It is apparent that the claim of rebate of Service Tax under Export of Service Rules, 2005 and refund of CENVAT Credit under Rule 5 of the Cenvat Credit Rules are mutually exclusive schemes. Moreover from the calculation in the sheet above, it can be seen that while the appellant has shown utilized ₹ 1,23,690/- in the quarter ending March, 2010 they have failed to include the amount utilized in respect of exports in respect of which rebate has been claimed. It is apparent that the duty paid on this export is payment of Service Tax on output services and to the extent that such credit is utilized, the claim is to be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (F) 1,23,690 1,23,690 6A Duty paid in respect of services exported on which rebate is claimed (X) 13,44,693 13,44,693 7 Unutilized Cenvat after setting off output liability for the quarter ending March 2010 (G)=(A)-(X)-(X) 25,87,231 25,87,231 8 Refund claimed (maximum refund available or unutilized credit whichever is less) (I) 25,87,231 25,87,231 Thus, it is apparent that the refund claim under Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X
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