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TMI Blog2021 (9) TMI 979X X X X Extracts X X X X X X X X Extracts X X X X ..... the total Cenvat credit to the extent of Rs. 7,77,628/- is allowed as admissible Cenvat credit for consideration of sanctioning of refund and the total Cenvat Credit to the extent of Rs. 5,56,690/- is held as inadmissible and in respect of the remaining amount of refund claim as discussed supra, the appellant is directed to produce the necessary documents to the adjudicating authority and the Adjudicating Authority should examine the same before considering the sanction of refund claim to the appellant. Accordingly the impugned order of the lower adjudicating authority need partial modification to that extent and are modified. In view of the above, the impugned order is partially modified and the appeal filed by the appellant is partiall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 I have considered the impugned order along with the submissions made in appeal and during the course of arguments. 4.2 Commissioner (Appeals) has vide the impugned order that held that CENVAT credit taken by the appellant on following services is inadmissible as they do not qualify as input services- * Air travel agent services (para 7.1) * Banking and Financial Services (para 7.3) * Cab Operator Services (para 7.5) * Courier Services (para 7.7) * Maintenance and Repair Services (para 7.10) * Market Research Agency Service (para 7.11) 4.3 Rule 5 of the CENVAT Credit Rules, 2004 was amended by the Notification No 18/2012 -CX (NT) dated 07.03.2012 to provide as under. 5. Refund of CENVAT Credit. - (1) A manufacturer who cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision 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 subrule (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 rule, as existing, prior to the commencement of the CENVAT Credit (Third A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the period under consideration is sought to be denied or varied, is not permissible. If the quantum of the Cenvat Credit is sought to be varied, by holding that certain services do not qualify as input services then the same could have been done by invoking the provisions of Rule 14 of the CENVAT Credit Rules, 2004. In my view the Commissioner (Appeal)/ Adjudicating Authority has misdirected himself by undertaking such exercise while adjudging the refund claim filed in terms of Rule 5. In the case of Accelya Kale Solutions Ltd. Vs. Commissioner of Central Goods Service Tax and Central Excise, Mumbai [2018-TIOL2452- CESTAT-MUM]. tribunal observed, as under:- "3. Rule 5 of Cenvat Credit Rules, 2004, was substituted vide Notificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue at the time of availment of credit, by way of initiation of separate proceedings. Having not done that, it is not permissible to raise the objection at the time of grant of refund in terms of the said rule. The reliance by the Learned Advocate to the Circular no. 120/01/2010-ST dated 19.01.2010 clarifying the issue that by observing that there cannot be different yardstick for establishing nexus for taking of credit and for refund of credit, is appropriate. Otherwise also, we find the issue stands decided by the many decisions of the Tribunal. One such reference can be made to the Tribunal decision in the case of Barclay Global Service Centre Pvt. Ltd.& Ors. V. Commissioner of Central Excise & Service tax, Noida [2019-TIOL-1714-CESTATALL ..... X X X X Extracts X X X X X X X X Extracts X X X X
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