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TMI Blog2022 (4) TMI 1300X X X X Extracts X X X X X X X X Extracts X X X X ..... suance of Notification No.27/2012 and amendment of Rule 5 of said Rules. Also involved is the issue of nexus between the input service on which credit is availed and the output service provided. 2. Learned Counsel, Shri Jayaram Hiregange, appearing for the appellant, submits that the credit of Krishi Kalyan Cess has been denied on the ground that the same is not mentioned in the invoices though it was paid; credit availed on input services like Business Support Services, Health Insurance, Event Management Services, Rental Charges on accommodation provided to employees, Rent of cafeteria was denied; out of pocket expenses incurred on Chartered Accountant Service and Management Business Consultant Service was also denied. On the other issues, he submits as follows: 2.1. In respect of Appeal No. ST/20676/2021, he submits that the issue of nexus cannot be looked into at the stage of granting of refund in view of the decision in CC Vs Convergys (India) Pvt. Ltd., 2009 (16) STR 198 and Sentinin Technologies Pvt. Ltd. Vs CCE & ST, Appeal-II, [2021] 123 taxmann.com 372 (Hyderabad-CESTAT). 2.2. In respect of Appeal No. ST/20677/2021, he submits that whereas the refund application is made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declared as Rs. 41,31,073/-, as the claimant have claimed inputs credit availed from May, 2009 to June, 2012 by bunching all the quarter together and claiming refund of Rs. 35,85,534/- in the quarter April, 2012 to June, 2012. In para 12 of OIA 36 to 40/2017 dated 13.01.2017, the Ld. Commissioner (Appeals) has stated that the original authority has not appreciated the fact that the appellant is a 100% EOU and in terms of Board Circular No.120/01/2010-ST, dated 19.01.2010, the appellant is entitled to avail the credit being a 100% EOU and the restriction of the credit to be availed only for the quarter for export does not apply. The OIO was therefore remanded back to the original authority for fresh adjudication, taking due note and cognizance of the discussion on specific issue in para 12 of the OIA and the general principles as laid down in the order. I have taken due note and cognizance of the above and I observe that this Circular (No.120/01/2010-ST, dated 19.01.2010) is applicable to Notification No.5/2005-CE (NT) dated 14.03.2006. The original refund claim pertains to the quarter April, 2012 to June 2012 and was filed on 30.03.2013 as per the OIO 71/2014. This claim is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad, 2010 (20) STR 193 (Tri. Ahmd.) (iii) Amdocs Business Services Pvt. Ltd. Vs Commissioner of Central Excise, Pune, 2013 (31) STR 249 (Tri. Mumbai) (iv) Texport Overseas Pvt. Ltd. Vs CCE, Bangalore-I, 2018 (5) TMI 1710-CESTAT Bangalore 2.2.5 He submits that this Bench in the case of John Deere (India) Pvt. Ltd. vide Final Order MANU/CM/0193/2019 dated 14.06.2019 held that refund claim needs to be filed within time frame provided under the amended provisions of CENVAT Credit Rules. They have filed the refund claim within the period prescribed and the same cannot be denied. 2.3. In respect of Appeal No. ST/20678/2021 learned Counsel submits that in the first round of litigation, learned Commissioner had allowed the appeal filed by the appellant and set aside OIA No.173/2017 holding that: Thus, the time limit therefore has to be computed from the last dated of the last month of the quarter, which should be the relevant date for the purposes of examining if the claim is filed within the limitation of time or otherwise. This view has also been upheld by CESTAT WRB in the case of Commissioner of Service Tax, Mumbai-II Vs M/s SITEL India Ltd. (2016-TIOL-818-CESTAT-MUM) and more rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice availed by the appellants in some quarters is not admissible as consequent to the amendment in CENVAT Credit Rules from April 2011 as held in the following case laws: (i) Bharat Fritz Werner Ltd Vs CCT, Bengaluru North Commissionerate as reported in 2019 (6) TMI 67- CESTAT Bangalore. (ii) Rittal India Pvt. Ltd. Vs CCT, Bengaluru North Commissionerate as reported in 2019 (6) TMI 66- CESTAT Bangalore. 4. Heard both sides and perused the records of the case. 5. I find that the main submissions of the appellant are that the issue of nexus cannot be discussed at the stage of refund and that the departmental officers cannot traverse beyond the directions in the remand order. Coming to the first issue, the appellants have claimed credit on input services like Business Support Services, Health Insurance, Event Management Services, Rental Charges on accommodation provided to employees, rent of cafeteria was denied; out of pocket expenses incurred on Chartered Accountant Service and Management Business Consultant Service. We find that the appellants have a prima facie case in their favour inasmuch as the issue of nexus cannot be raised at the point of grant of refund. Following the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. Vs Commissioner of Central Excise, Pune and Texport Overseas Pvt. Ltd. Vs CCE, Bangalore-I (all supra). However, I find that the impugned case is factually different from the above cases. In the above cases, the refunds under question were under Notification No.05/2006 whereas the refund in the impugned case is as per Notification No.27/2012. The appellant claimed that initially, they have filed refund claim under Notification No.5/2006 however on the insistence of the Department they have filed the same under Notification No.27/2012. I find that this Bench has gone into the issue, in the case of John Deere (supra), as submitted by the learned Authorized Representative, and has observed as under: 5.4. The appellant argues that the definition of "net Cenvat Credit‟ consists of two parts. The first part deals with total Cenvat Credit availed on input services by the output service provider whereas the second part deals with reduction in the total Cenvat credit, which is to be reduced in terms of sub-Rule (5C) of Rule 3 of the Rules during the relevant period. Sub-Rule (5C) of Rule 3 of the CENVAT Rules deals with remission of duty as per the provisions of Rule 21 of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oted above that the credit is admissible to the appellants. Therefore, I find that the original authority could not have decided the other way as no appeal was filed against the said OIA No.36-40/2017 dated 13.01.2017 by the Department. Similarly, in respect of Appeal No. ST/20678/2021, I find that Commissioner (Appeals) vide Order-in-Appeal No.766/2017 dated 18.08.2017 has allowed the appeal of the appellants and has not even remanded the matter to the lower authority however, the lower authority has denied the credit once again vide OIO No.4/2019-20 dated 07.05.2019 and categorically refers to the above OIA. This OIA is also not appealed against by the Department. Therefore, I find that there is force in the argument of the appellants. To this extent, I find that the impugned orders are not sustainable as both the OIAs in the first round attained finality as the Department has not appealed against the same. Therefore, it is not free for the original authority to traverse beyond the remand order and to reject the refunds. It is not correct on the part of the appellate authority such blatantly wrong and perverse orders. Without going into the merits, I find that the appellants succ ..... 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