2017 (8) TMI 513

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..... f the factory premises falls under the input service, therefore the construction service used by the appellants is admissible input service. Therefore they are eligible for refund of the CENVAT credit availed on construction service - appeal allowed - decided in favor of appellant. - E/87209/13 - A/88466/17/SMB - Dated:- 3-7-2017 - Shri Ramesh Nair, Member (Judicial) Shri Dilip Bhosle, Assistant Manager (Excise) for the appellant Shri S.V. Nair, AC (AR) for the respondent ORDER The appellants have filed refund claim under Rule 5 which was partly allowed by the adjudicating authority. In the appeal filed by the appellants before the Commissioner (Appeals), he also allowed part of the claim which was rejected by th .....

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..... gments.:- i) J.P. Morgan Services (I) Pvt. Ltd. - 2016 (42) STR 196 ii) John Deere India Pvt. Ltd. - 2016 (41) STR 990 iii) Kamal Rub Plast Industries Pvt. Ltd. - 2016 (41) STR 855 iv) CCE vs. Ultratech Cement Ltd. - 2010-TIOL-745-HC-MUM-ST 3. Shri S.V. Nair, AC (AR) appearing on behalf of the revenue reiterates the findings of the impugned order. 4. I have carefully considered the submission made by both sides. I find that the adjudicating authority rejected the refund on construction service on the ground that the said service was excluded from the definition of input service. in this regard I observe that the finding of the adjudicating authority is absolutely incorrect for the reason that the cenvat .....

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..... tice on the issue of admissibility of the input service. The refund was rejected without first deciding whether the construction service in question is input service or otherwise. For this reason also rejection of refund is not tenable. The adjudicating authority also not issued show-cause notice proposing the rejection of refund claim, accordingly no opportunity was given to the appellants. Hence the adjudicating authority has grossly violated the principles of natural justice. I also observe that an identical service in the appellant's own case, the refund under Rule 5 was allowed by the Tribunal in order dated 12.11.2012 wherein this Tribunal had passed the following order:- 6. From the reading of the above, it becomes absolut .....

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