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TMI Blog2017 (4) TMI 997X X X X Extracts X X X X X X X X Extracts X X X X ..... )(bb) bars the availment of credit when the service tax is paid pursuant to the notice issued alleging fraud, suppression of facts and wilful misstatement - credit allowed. Validity of remand order - Although the Commissioner (Appeals) remanded the matter to adjudicating authority for reconsideration of the issue of eligibility of credit, there is no specific direction made for the remand - Held that: - The Commissioner (Appeals) has given detailed discussion of the issues, facts as well as the law relating to them and thereafter has arrived at the conclusion that respondents are eligible for credit/refund. He has remanded the matter only for the limited purpose of verifying and granting the refund. Sub-section (4) of Section 85 does not limit the powers of the Commissioner (Appeals) to remand a matter. Appeal dismissed - decided against Revenue. - Appeal No. ST/30138/2016 & ST/30139/2016 - Final Order Nos. A/30357-30358/2017 - Dated:- 15-2-2017 - Ms. Sulekha Beevi, C.S., Member (Judicial) Sh. Nagaraj Naik, Deputy Commissioner (AR) for the Appellant Sh. S. Thirumalai, Advocate for the Respondent ORDER [ Order Per Sulekha Beevi, C. S. ] 1. The above ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a facie there appears to be no scope for disallowing CENVAT credit on selected services and for holding refund as ineligible. That the Commissioner (Appeals) has erred in taking such view for the reason that while allowing refund, the nexus of the input services with the output services also has to be established. 6. The Ld. AR thus submitted that the Commissioner (Appeals) has wrongly held the respondents to be eligible for credit/refund, and the remand of the matter is also not proper. 7. Against this, the Ld. Counsel Sh. S. Thirumalai submitted that the Commissioner (Appeals) has analysed the facts, and evidence in the case in detail and held that the services are eligible for credit/refund. In respect of the credit taken on the service tax which was paid belatedly under reverse charge mechanism, the Ld. Counsel relied upon the circular No. 120/1-2010, dt. 19.01.2010 and DOF No. 334/1(2012)-TRU dt. 16.03.2012 and contended that the said circular clarifies that the appellant can seek refund of service tax paid in a previous quarter also. The Ld. Counsel added that when pointed out by audit, service tax was paid belatedly under section 73(4A) by the respondent. On this payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the credit was availed on the basis of the invoices for foreign agent commission service dated.01.03.2010, 10.11.2010 and 25.03.2011. That the period of refund claim pertains to February, 2012 March, 2012. That as the invoices are for past period, the appellant is not entitled to the refund. 6. With regard to the issue whether the appellant is eligible for refund in respect of credit availed for earlier period, the D.O.F. No. 334/1/2010-TRU, dated.26.02.2010 clarifies the same, and is reproduced as under: Refund of accumulated CENVAT credit to exporters: Amendments in Notification No. 5/2006-C.E. (N.T.) 8.1. It may be recalled that a number of representations were received from exporters, especially the exporters of services regarding difficulties being faced in availing the benefit of refund of accumulated credit under the scheme prescribed under Notification No. 5/2006-CE (NT), dated. 14.03.2006, issued under rule 5 of the CENVAT Credit Rules, 2004. While certain issues germinated from the wordings used in the provisions of the notification or interpretation of such provisions, other issues were more in the nature of administrative difficulties in ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CENVAT can be claimed by the exporter of goods or services. 3) The illustration given in condition 5 of the Appendix to the Notification has been deleted. This ensures that refund of CENVAT credit which has been availed in the period prior to the quarter/period for which the refund has been claimed is also eligible for refund . The refund claims should be calculated only on the basis of the ratio of the export turnover to the total turnover of the claimant. Thus, if the CENVAT credit available to the exporter at the end of the quarter, or month, as the case may be, is ₹ 1 crore, and the ratio of export to total turnover during the quarter is 50%, then ₹ 50 lakh should be refunded to the exporter. The essence of the changes is that refund shall be available for all goods, or input services, on which CENVAT is permissible and should be processed accordingly. Further, refund of CENVAT should not be linked to CENVAT taken in a particular period only. 10. Following the decision in the above stated Final Order in the case of Hritik Exim Vs CCE, Hyderabad, as well as the above Direct Order of the TRU, clarifying Circular No. 120/01/2010-ST and retrospective amend ..... X X X X Extracts X X X X X X X X Extracts X X X X
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