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TMI Blog2016 (6) TMI 1299X X X X Extracts X X X X X X X X Extracts X X X X ..... he present appeal was filed by the appellant against the Order-in-Appeal No. PI/RKS/30/2012 dt. 28.2.2012 passed by the Commissioner (Appeals) Central Excise, Pune-I whereby the Ld. Commissioner upheld the rejection of refund claim of Rs. 17,57,529/- on the ground that this credit was availed by the appellant before making payment of value and the service tax on such services to service provider.& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsequently the same has been paid. At the time of process of refund claim the value of the service and service tax stood paid to the service provider, therefore refund cannot be denied on this ground. He relied upon this Tribunal judgment in the case of Gujarat Pipavav Port Ltd. Vs. Commissioner of Central Excise, Bhavnagar 2009 (14) STR 53 (Tri.-Ahmd.). 3. Shri V. Kaushik, Ld. Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service provider they became entitled for the cenvat credit and the sanction of refund claim thereafter cannot be disputed. The decision of this Tribunal in the case of Gujarat Pipavav Port Ltd.(supra) squarely applies in the facts of the present case wherein it was held as under : "2."Learned Advocate appearing for the appellants submits that this was a procedural lapse on the part of the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it availed at premature stage cannot be reason for denial of credit. In the above decision, it was held that at the most interest can be charged. In the present case, the fact is that the cenvat credit was availed only for claiming the refund under Rule 5 and there was no utilization of the credit for payment of service tax. Therefore, even the interest is not applicable in the facts o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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