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TMI Blog2018 (7) TMI 1052X X X X Extracts X X X X X X X X Extracts X X X X ..... ad Office which is also registered as ISD and as per Rule 9 of the CENVAT Credit Rules, the CENVAT credit can be availed on the basis of an invoice, a bill or challan issued by an ISD under Rule 4A of the Service Tax Rules, 1994 and in the present case, the appellant has availed the credit on the basis of the invoices issued by the ISD which satisfied the requirement of Rule 9 of CENVAT Credit Rules - Further the eligibility to CENVAT credit can only be questioned by the tax authorities under whose jurisdiction, the ISD is registered and not by the tax authorities where the appellant is registered. Appeal allowed - decided in favor of appellant. - E/20307/2018-SM, E/20308/2018-SM, E/20309/2018-SM - 20833-20835/2018 - Dated:- 20-6-2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Commissioner (Appeals) and the Commissioner (Appeals) allowed the Departmental appeal. Hence the present appeals. The details of refund claims are as under:- Appeal No. E/20307/2018 E/20308/2018 E/20309/2018 Period of dispute April 2015 to June 2015 July, 2015 to September 2015 January 2015 to March 2015 CENVAT credit involved Rs.9,02,889/- Rs.2,76,403/- Rs.6,30,028/- 3. Heard both the parties and perused records. 4.1. Learned counsel for the appellant submitted that the impugned order is not sustainable in la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the present proceedings, the question of admissibility cannot be examined and the only issue to be examined is whether the credit was accumulated or whether it could have been utilized or not and whether the refund was admissible under Notification No.5/2006. In support of this submission, he relied upon the decision of the Tribunal in the case of CCE, Vadodara Vs. Transatlantic Packaging Pvt Ltd. [2012(28) STR 102]. The learned counsel further contended that the CENVAT credit in question was availed and distributed by the Head Office of the appellants located in Noida, which is registered as an Input Service Distributor (ISD); hence the credit which has been distributed has already acquired the nature of credit at the ISD level itself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und subsequently, He also submits that once the credit availed itself is not proper, the right course is that the same should be recovered from the appellant and the Commissioner (Appeals) has only directed that the appellant to reverse the CENVAT credit along with interest. 6. After considering the submissions of both the parties and perusal of various case laws relied upon by the appellant cited supra, I find that in the present case, the issue was whether the appellant is eligible for the refund of unutilized input service credit under Rule 5 of CENVAT Credit Rules 2004 but the Department has gone beyond the show-cause notice and has examined the eligibility and recovery of the credit which can only be done by issuing a show-cause not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accumulated credit, the decision of the Tribunal in the case of Capiq Engineering Pvt. Ltd (supra) squarely applies to the facts of this case and Commissioner (Appeals) has correctly relied upon the same. Further, the decision of the Tribunal in the case of Kbase Tech Pvt Ltd (supra) considered the admissibility of Cenvat credit since that was the issue for consideration as per Para 4 of the order. In any case, in view of the retrospective effect of the amendment, the admissibility also has been accepted as already observed above. Therefore, the only admission by the Revenue is that the appeal has been filed against the decision of the Tribunal in the case of Capiq Engineering Pvt Ltd. (supra). However, no stay has been granted. 7. Bes ..... X X X X Extracts X X X X X X X X Extracts X X X X
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