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TMI Blog2022 (3) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... service is determinant factor for admissibility as discussed in para 6 above. Further, the case law cited in this regard pertains to period prior to 1.4.2011. I am of the view that such services only constitute activities related to business which stands deleted from the definition of input services, with effect from 01.04.2011 and therefore, these services, do not have any direct nexus with the 'output services for providing an 'output service' by the appellant and exported. Moreover, the appellant has failed to produce any tangible documentary evidence to prove that the said services are not used for the personal use of the employees and also failed to prove that in case of absence of such input services, the quality and efficiency of the provisions of service exported is adversely impacted. Since such input services are not analogous to the services falling within the ambit of Rule 2 (1) of the Cenvat Credit Rules, 2004 and the onus is on the appellant to prove that the services received had actually gone into the consumption for providing those output service which are exported, I do not intend to interfere with the findings of the lower authority in respect of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut service provider, shall be entitled to take the credit of the amount equivalent to the CENVAT credit paid earlier subject to the other provisions of the Cenvat Credit Rules, 2004. It is observed that the refund has been filed for the quarter ending Oct-2016 to Dec-2016 but as per the appeal memo all payments have been made in the months of Feb-17 or Mar-17 i.e. beyond a period of 90 days. Hence, in terms of specific provisions of Rule 4 (7) of the Cenvat Credit Rules, 2004 such credit is inadmissible and hence disallowed. Held Accordingly In view of the above, the impugned order is partially modified, and the appeal is partially allowed, as per above terms." 2.1 Appellants have filed the refund claim under Rule 5 of the CENVAT Credit Rules, 2004, in Form 'A' under Notification No 27/2012-CE(N.T.) dated 18.06.2012 on the ground that they have exported the output services without payment of service tax during the period from Oct 2016 to Dec 2016 Period Amount Date of filing Oct 2016 to Dec 2016 56,09,640 29.09.2017 2.2 After consideration of the refund claim the Assistant Commissioner allowed the refund claim modifying the same, stating as follows: "I hereby san ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty under bond or letter of undertaking, or a service provider who provides an output service which is exported without payment of service tax, shall be allowed refund of CENVAT credit as determined by the following formula subject to procedure, safeguards, conditions and limitations, as may be specified by the Board by notification in the Official Gazette: Refund amount = (Export turnover of goods + Export turnover of services) X Net CENVAT credit Total turnover Where,- (A) Refund amount means the maximum refund that is admissible; (B) Net CENVAT credit means total CENVAT credit availed on inputs and input services by the manufacturer or the output service provider reduced by the amount reversed in terms of sub-rule (5C) of rule 3, during the relevant period; (C) Export turnover of goods means the value of final products and intermediate products cleared during the relevant period and exported without payment of Central Excise duty under bond or letter of undertaking; (D) Export turnover of services means the value of the export service calculated in the following manner, namely:- Export turnover of services = payments received during the relevant period for export ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... along with the goods and services exported. To accomplish this Government has provided for various schemes to zero rate the goods and services exported. Rule 5 do not provide for disallowing any credit for any reason whatsoever. 4.6 Rule 14 of the said rules provide as follows: RULE 14. Recovery of CENVAT credit wrongly taken or erroneously refunded. - (1) (i) Where the CENVAT credit has been taken wrongly but not utilised, the same shall be recovered from the manufacturer or the provider of output service, as the case may be, and the provisions of section 11A of the Excise Act or section 73 of the Finance Act, 1994 (32 of 1994), as the case may be, shall apply mutatis mutandis for effecting such recoveries; (ii) Where the CENVAT credit has been taken and utilized wrongly or has been erroneously refunded, the same shall be recovered along with interest from the manufacturer or the provider of output service, as the case may be, and the provisions of sections 11A and 11AA of the Excise Act or sections 73 and 75 of the Finance Act, 1994, as the case may be, shall apply mutatis mutandis for effecting such recoveries. 4.7 From the reading of the provisions of Rule 14 it is quite e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;s case (supra) held: "The rule adopted in Taylor v. Taylor [(1876) 1 Ch.D 426] is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted. ......"" 4.11 In the case of Hussein Ghadially v. State of Gujarat [(2014) 8 SCC 425] "19. Thirdly, because if the Statute provides for a thing to be done in a particular manner, then it must be done in that manner alone. All other modes or methods of doing that thing must be deemed to have been prohibited. That proposition of law first was stated in Taylor v. Taylor (1876) 1 Ch. D426 and adopted later by the Judicial Committee in Nazir Ahmed v. King Emperor AIR 1936 PC 253 and by this Court in a series of judgments including those in Rao Shiv Bahadur Singh & Anr. v. State of Vindhya Pradesh AIR 1954 SC 322, State of Uttar Pradesh v. Singhara Singh and Ors. AIR 1964 SC 358, Chandra Kishore Jha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 considered opinion, cannot stand for judicial scrutiny. 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. The Learned Advocate appearing for the assessee-appellant submitted that it should be entitled for the benefit of interest for non-consideration of the refund application within the stipulated time-frame prescribed under the statute. However, on perusal of the case records, more specifically the grounds of appeal annexed to the appeal memorandum, we find that the assessee-appellant has not raised any plea on the issue of payment of interest therein. Since such issue is not arising out of the appeal proceedings before ..... X X X X Extracts X X X X X X X X Extracts X X X X
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