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2019 (8) TMI 1645

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..... es, the provisions of Section 11A of the Central Excise Act, 1944/Section 73 of the Finance Act, 1994 shall apply mutatis mutandis. It is an admitted fact on record that the department has not invoked the provisions of Rule 14 ibid for effecting recovery of the alleged irregular Cenvat credit availed by the assessee-appellant. Thus, under such circumstances, it can be said that taking of Cenvat credit on the disputed services by the appellant is in conformity with the Cenvat statute. Rule 5 ibid nowhere specifies that Cenvat credit can be denied on the ground of irregular availment or utilisation of the same. Thus, in absence of specific provisions contained in the statute, denial of the refund benefit provided under Rule 5 ibid, in our con .....

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..... ring together and a common order is being passed. 2. Briefly stated, the facts of the case are that the assessee-appellant is inter alia, engaged in providing software related services for design, developing and testing for enhancement and improvement of Qualcomm group s existing products and new products. Such services provided by the assessee-appellant are categorised as taxable service, defined under Section 65 of the Finance Act, 1994. The assessee-appellant exports the entire output service to the outside countries. In view of exportation of the entire output service, the assessee-appellant was not in a position to utilise the Cenvat credit for payment of service tax on the taxable output services. Thus, during the disputed period, .....

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..... to issue the show cause notice under Rule 14 ibid read with Section 11A of the Central Excise Act, 1944/Section 73 of the Finance Act, 1994. Therefore, Learned Advocate submits that since such provisions have not been invoked and refund benefit has been denied solely on the ground of non-establishment of nexus between the input service and output service, denial of the benefit of refund on such ground is not in conformity with the statutory provisions and thus, the impugned order is liable to be set aside on that ground alone. He has also relied upon and referred to the Final Order No. 30707-30711/2017, dated 7-6-2017 passed by this Tribunal, in the case of the appellant itself, holding that while deciding the refund issue, the nexus aspect .....

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..... guidelines laid down under the notifications issued thereunder. We find that the refund benefit was denied to the assessee-appellant on the sole ground that there was no nexus between the input services and the output service exported by the appellant. Further, in Revenue s appeal, it has been contended that certain disputed services are not conforming to the definition of input service provided under Rule 2(l) ibid. Insofar as taking of irregular Cenvat credit is concerned, Rule 14 ibid clearly mandates that in case of irregular availment of credit or its utilisation, such credit can be recovered from the assessee and for effecting the recoveries, the provisions of Section 11A of the Central Excise Act, 1944/Section 73 of the Finance Act, .....

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