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TMI Blog2019 (10) TMI 1038X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the appellant and has also remanded the case to the original authority to examine the question of eligibility of credit which in view of the decision of the Hon ble Supreme Court in the case of Toyo Engineering India Ltd. [ 2006 (8) TMI 184 - SUPREME COURT ] is not tenable in law. Further, it is not in dispute that the services availed by the appellant falls in the definition of input service and the said service was availed and service tax was paid and the said service was utilized by the appellant and once this is admitted and undisputed, then, in my view CENVAT credit cannot be denied. Further, the Commissioner (A) himself in para 10 has admitted that certain input services were received by Biakampady Unit and invoices were raised i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were issued by them in order to avail credit by above mentioned Branch units. On pointing out by the Auditors, the appellant initially paid back such disputed credit along with interest and penalty. However, later on filed the refund claim for ₹ 16,47,693/- on 16.3.2018 for refund of CENVAT credit wrongly reversed by them in response to audit observations. After examining the said refund claim, a show-cause notice was issued to the appellant dated 5.6.2018 for rejection of the refund claim on the ground that they should have availed credit only on the strength of invoices issued by the ISD as pointed out by the audit. The Asst. Commissioner, Mangalore vide Order-in-Original dated 15.6.2018 rejected the refund claim of the appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng India Ltd.: 2006 (201) ELT 513 (SC) Commissioner of Central Excise, Nagpur vs. Ballarpur Industries Ltd.: 2007 (215) ELT 489 (SC) 4.1 The second submission of the learned counsel is that the impugned order rejecting the claim on the ground that CENVAT credit in respect of which refund claim was sought needs examination to ascertain the eligibility of such credit is incorrect. The eligibility of CENVAT credit were not questioned at any stage and no show-cause notice has been issued under Rule 14 of the CENVAT Credit Rules proposing to recover such credit. He further submitted that once the eligibility of CENVAT credit is not questioned, then at the refund stage it cannot be taken as ground for rejecting the refund. For this submission, he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Credit Rules, 2004 which mandates that once an assessee is registered as an Input Service Distributor then the manufacturing unit / plant cannot avail credit on the basis of invoices/challan which are valid documents for availment under Rule 9(1)(f) of CENVAT Credit Rules, 2004. His further submission is that even if it is admitted that appellant has availed CENVAT credit on the strength of incorrect/incomplete document, it is only a procedural lapse and on such procedural lapse substantive benefit of CENVAT Credit should not and cannot be denied. 5. On the other hand, the learned AR defended the impugned order and fairly conceded that in the show-cause notice the only ground for rejection of refund is that the ISD invoices was not produce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, the question of eligibility by the Commissioner (A) at the appellate stage is not sustainable in law. Further, it is not in dispute that the services availed by the appellant falls in the definition of input service and the said service was availed and service tax was paid and the said service was utilized by the appellant and once this is admitted and undisputed, then, in my view CENVAT credit cannot be denied. Further, the Commissioner (A) himself in para 10 has admitted that certain input services were received by Biakampady Unit and invoices were raised in their name and it appears that Biakampady Unit is entitled to CENVAT credit on the same. Once this finding is recorded, there is no justification for denial of CENVAT credit an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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