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TMI Blog2022 (12) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of Cenvat Credit Rules, 2004 being no nexus with the output services? 3. The period in dispute is October, 2016 to March, 2017. The appellants herein are provider of Financial Investment Advisory Service to its overseas clients. Admittedly, the entire output services of the appellants were provided to their overseas clients and no part of the output services were provided to any client in India. Two refund claims were filed by the appellants for the period October, 2016 to December, 2016 and January, 2017 to March, 2017 respectively totalling Rs.2,10,44,635/-. The Adjudicating Authority vide Order-in-Original dated 17.4.2018 rejected the refund claim to the tune of Rs.36,86,969/- some on the ground that the premises are not registered and some rejection was on the ground that the appellants has failed to establish any nexus of the input services in issue with the export of service. On Appeal filed by the appellant, the learned Commissioner vide impugned order dated 11.3.2019 further allowed the refund to the tune of Rs. 13,98,099/- (which was rejected by the adjudicating authority on the ground that 'premises not registered') but upheld the rejection on Rs.22,88,870/- on the gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the respective sides. There is no doubt that Rule 5 ibid provides for refund of accumulated Cenvat credit subject to compliance of the procedure/guideline laid down under the notifications issued thereunder. The refund of Cenvat credit on the services in issue was mainly denied to the Appellant on the ground of 'no nexus' between the input services and the export services. The issue which falls for consideration in these Appeals is whether the department can deny refund of Cenvat credit under Rule 5 ibid alleging that there was no nexus between the output and input services. It is well settled legal position that denial of Cenvat credit can be done only by issuing notice under Rule 14 ibid. Having allowed the Cenvat credit or by not denying the same, the department cannot reject refund of Cenvat credit under Rule 5. It is well settled principle that availment of Cenvat credit, its utilisation and refund are different aspects dealt with under CCR, 2004. Rule 5 provides for any refund of Cenvat credit and nowhere in this Rule there is a provision to determine the correctness about the availment of Cenvat credit. Its only Rule 14 ibid which provides for recovery of irregularly avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 2(l) ibid and the invoices were not submitted by the appellant, establishing the fact that the refund benefit should be granted to it. So far as establishing the nexus between input and the output service is concerned, I find that this Tribunal in the case of Accelya Kale Solutions Ltd. (supra) by relying upon the letter dated 16-3-2012 of TRU has held that under Rule 5 ibid, refund of input service credit is permissible on compliance of the formula prescribed therein and not otherwise. The relevant paragraphs in the said order are extracted hereinbelow: "3. Rule 5 of Cenvat Credit Rules, 2004, was substituted vide Notification No. 18/2012-C.E. (N.T.), dated 17-3-2012, with effect from Appeal Nos. ST/88190, 88215, 88216 & 88217/2018, 1- 4-2012. The said substituted rule has prescribed the formula for claiming refund of service tax by the service provider. Under such amended rule in vogue, there is no requirement of satisfying the nexus between the input services and the output service provided by the service provider. Consequent upon substitution of the said Rule in the Union Budget-2012, the Tax Research Unit (TRU) of CBEC vide letter dated 16-3-2012 has clarified as under :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r consideration is not permissible. If the quantum of the Cenvat credit is to be varied or to be denied on the ground that certain services do not qualify as input services or on the ground of 'no nexus', then the same could have been done only by taking recourse to Rule 14 ibid. 6. In view of the discussions made hereinabove in the preceding paragraphs, in my opinion since the provisions of Rule 14 ibid have not been invoked, the refund of Cenvat credit as claimed by the Appellant under Rule 5 ibid cannot be denied to them and the same is admissible. Therefore, the Appeals filed by the Appellant are allowed with consequential relief, if any." 6. It is settled legal position that in absence of any notice for recovery as provided by Rule 14 ibid the refund claimed by the assessee under Rule 5 cannot be denied. Now I will take the merits of the matter and it has already been held by this Tribunal in the matter of Accelya Kale Solutions Ltd.(supra) that in such cases the nexus between the input service used in export of service should not be insisted upon. The relevant paragraphs of the aforesaid decision are reproduced hereunder:- "6. The fact is not under dispute that the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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