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TMI Blog2017 (8) TMI 553X X X X Extracts X X X X X X X X Extracts X X X X ..... 8/- is nothing but the credit availed during the relevant quarter. Therefore, this amount must be taken into total amount of net cenvat credit availed. It is also pertinent to note that the appellant is a 100% EOU, so whatever cenvat credit has been availed on the input service, entire amount is refundable. In this case no one to one correlation is required. As regards the amount of ₹ 12,084/- the appellants have conceded that they are not contesting the same. Therefore rejection of refund claim for ₹ 12,084/- is upheld. Appeal allowed - decided partly in favor of appellant. - ST/86901/16 - A/88802/17/SMB - Dated:- 31-7-2017 - Shri Ramesh Nair, Member (Judicial) Shri H. P. Kanade, Advocate for the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordingly, refund of this amount has been allowed and remaining amount of ₹ 2,43,772/- was disallowed. Being aggrieved by the Order-in-Original the appellants filed appeal before the Commissioner (Appeals), who rejected the appeal by upholding the Order-in-Original dated 15.12.2015. The ld. Commissioner (Appeals) also gave a finding for rejecting the appeal that once the refund claim amounting to ₹ 2,31,688/- was rejected in the earlier quarter, the same cannot be claimed again in the subsequent quarter. 3. Shri H.P. Kanade, ld. Counsel appearing for the appellants as regards the claim of an amount of ₹ 12,084/- on the capital goods he clearly concedes that the appellant is not contesting the refund of this amount. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant can take back the credit for an amount which was not sanctioned as refund under Rule 5 and notification issued thereunder. In the present case, for the quarter July 2012 to September 2012 the refund of ₹ 2,31,688/- was not sanctioned therefore, in accordance with clause (i) of para 2 of the notification, the appellant was statutorily entitled for taking credit of the said amount. Since their availment of credit in the quarter April 2013 to June 2013 is legal and correct the same is required to be considered for the purpose of refund for this quarter. In the adjudication proceeding, the availment of credit was not disputed whereas the refund was rejected. As regards formula, Rule 5 is reproduced below:- RULE 5. Refund of CENV ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvances received for export services for which the provision of service has not been completed during the relevant period; (E) Total turnover means sum total of the value of - (a) all excisable goods cleared during the relevant period including exempted goods, dutiable goods and excisable goods exported; (b) export turnover of services determined in terms of clause (D) of sub-rule (1) above and the value of all other services, during the relevant period; and (c) all inputs removed as such under sub-rule (5) of rule 3 against an invoice, during the period for which the claim is filed. (2) This rule shall apply to exports made on or after the 1st April, 2012 : Provided that the refund may be claimed under this r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... availed by the appellants during the relevant period April 2013 to June 2013 under the authority of clause (i) of para 2 of notification 27/12-CE(NT). Therefore this amount of ₹ 231,688/- is nothing but the credit availed during the relevant quarter. Therefore, this amount must be taken into total amount of net cenvat credit availed. Even though the refund in respect of this amount was earlier rejected on the ground of time bar, this cannot be the reason for denying the refund as the credit of same amount in the subsequent quarter, the law permits the assessee to take back the credit of said amount for which the refund was not earlier granted. If the amount of cenvat credit of ₹ 231688/- is reduced for the purpose of net cenvat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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