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TMI Blog2021 (11) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... ice Tax Appeal Nos.22355 of 2014 and 30172 of 2016, passed by the Customs, Excise and Service Tax Appellate Tribunal, Regional Bench, Hyderabad (for short, 'the Tribunal'). 3. The Revenue is the appellant in both the appeals before this Court. 4. Before the Tribunal, there were two appeals, - one filed by the respondent/assessee, numbered as ST No.22355 of 2014, and the other by the appellant/revenue, numbered as ST No.30172 of 2016. 5. By the present appeals filed, the revenue is questioning the common order passed by the Tribunal in the above mentioned two appeals to the extent it had allowed the appeal of the respondent/assessee and dismissing the appeal of the appellant/revenue. 6. Before the Tribunal, it is the admitted case that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant/revenue as well as the respondent/assessee preferred separate appeals before the first appellate authority as provided under Section 35F of the Central Excise Act, 1944 (for short, 'the Central Excise Act'), as applicable to service tax by virtue of Section 83 of the Finance Act. 9. The first appellate authority, by Order-in-Appeal passed, had set aside the Order-in-Original to the extent it had rejected the refund claim made by the respondent/assessee and remanded the matter to the lower adjudicating authority for de novo adjudication. So far as the appeal filed by the appellant/revenue is concerned, the same was dismissed. 10. It is against the Order-in-Appeal passed under Section 35F of the Central Excise Act to the extent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies under the Finance Act are empowered to recover the same from the assessee. It is also an admitted fact that the said provisions have not been invoked by the appellant/revenue against the respondent/ assessee. 16. As the availment of CENVAT credit by the appellant under Rule 3 of the Rules is not called in question, the denial to grant refund under Rule 5 of the Rules without there being any proceedings initiated under Rule 14 of the Rules by seeking to deny the refund on the ground of the respondent/assessee availed CENVAT credit on input services, which according to the appellant/revenue have no nexus with the output service, in our considered view, cannot be held to be justified. 17. Further, it is to be noted that these appeals rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same. Thus, in absence of specific provisions contained in the statute, denial of the refund benefit provided under Rule 5 of ibid, in our considered opinion, cannot stand for judicial scrutiny.' 19. The Tribunal by observing as above, held - "Since the department has not specifically alleged regarding actual exportation of services by the assessee-appellant and use/utilization of disputed services for such activities, benefit of refund should be available in terms of the unambiguous provisions contained in Rule 5 ibid, subject only to adherence of the formula laid down thereunder." 20. The above findings as recorded by the Tribunal, in our view, do not call for any interference, being a finding of fact. 21. Thus, this Court is of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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