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TMI Blog2023 (3) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise Rules, 2002, the CENVAT Credit Rules, 2004, or the Service Tax Rules, 1994. Reliance placed in the case of PRINCIPAL COMMISSIONER OF SERVICE-TAX VERSUS BROADCOM INDIA RESEARCH PVT. LTD. [ 2016 (6) TMI 877 - KARNATAKA HIGH COURT] where it was held that the relevant documents on the basis of which credit was taken, nature of service and its nexus and utilization of the service for there was some mistake in the ST-3 returns, substantive right of assessee for refund cannot be rejected. Thus, the refund claim could not have been denied for this reason. It is stated/ unstated policy which govern the exports of goods or services across the globe that the local taxes should not be exported along with the goods or services exported. Appeal allowed. - Service Tax Appeal No. 85163 of 2020 - FINAL ORDER NO. A/85351/2023 - Dated:- 8-3-2023 - MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Shri Vinay Jain, Advocate, for the Appellant Shri S.B.P. Sinha, Superintendent, Authorised Representative for the Respondent ORDER This appeal is directed against the order in appeal no NA/CGST/A-I/MUM/ 179/2019-20 dated 26.09.2019 of the Commissioner (Appeals), GST an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he return for the period April 2006 to Sept. 2006, the claimant has not shown any opening balance of Cenvat Credit or Education Cess in the month of April 2006, thus implying that the claimant did not have any unutilized Cenvat Credit lying in their account by the end of March 2006. Thus the claimant's refund claim (of the unutilized Cenvat Credit) for the period from April 2005 to March 2006 total amounting to RS. 23,83,160/-(Rs. 14,44,091/- for April 2005 to December 2005 and Rs. 9,39,069/- for January 2006 to March 2006) is liable for rejection. ii. The claimant has availed cenvat on input services of rent a cab, maintenance Repair, cleaning services, mandap keeper services, internet charges Dry cleaning services in respect of hotels, erection / commission and installation charges, catering services, telephone services, insurance services, manpower recruitment services, etc. These services have no nexus with the output services. Further in some cases the invoice is not in appellant's name, invoice is not submitted and excess credit is claimed. Therefore Cenvat credit of Rs. 16,36,122/- is disallowed. 2.4 Aggrieved appellant, filed appeal to Commissioner (Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order. 4.1 I have considered the impugned order along with the submissions made in appeal and during the course of arguments. 4.2 On the issue for which appeal has been filed impugned order records the findings as follows: 4.1 To begin with I would discuss the finding of the Adjudicating Authority OIO to the effect that refund claim amounting to Rs. 23,83,160/- is liable for rejection as in the ST 3 returns for the period April, 2006 to September, 2006, the opening balance of Cenvar Credit was zero. Appellants have contended that though they had received the services but they had not availed the credit. Considering that there is a time limit for availment of credit and appellants had an option to file the revised return, their contention that under the circumstances credit should be deemed to have been availed has no legal basis and disallowance of refund claim amounting to Rs. 23.83.160/- by the Adjudicating Authority merits to be upheld accordingly. 4.3 Original authority in his order has recorded as follows: 15. I find that the claimant had filed refund claims under Rule 5 of the CENVAT Credit Rules, 2004, which reads as under: Where a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o of export turnover to the total turnover for the given period to which the claim relates. 17. From the documents available on record, I find that the claimant had filed an amendment in their registration on 26.06.2006 for the purpose of inclusion of 'Banking and Other Financial Services' which are covered under Clause65(12)(a)(vi) of Finance Act, 1994 and are taxable in terms of Section 65(105)(zm) of Finance act, 1994. 18. From the ST-3 returns filed by the claimant for the period April'2005 to September 2006 and submitted to this office on 30.7.2018 during the course of the personal haring, I find the following: (i) The claimant has not provided any Cenvat credit details with respect to Banking and Other financial Services (BOFS) or any other services in the ST-3 returns for the period April 2005 to March'2005. (ii) Consequent to including BOFS in their registration w.e.f. 26.06.2006, the claimant has shown the details of BOFS in their return for the period April 2006 to Septemeber'2006. (iii) At the time of filing the return for the period April 2006 to September 2006, the claimant has not shown any opening balance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gust September [1] [2] [3] [4] [5] [6] [7] Opening Balance 4,850 10,405 13,694 21,500 53,531 Credit on education cess availed on goods Credit on education cess availed on services 4,850 5,555 3,289 7,806 32,031 3,479 Credit on education cess utilized for payment of service tax Closing balance 4,850 10,405 13,694 21,500 53,531 57,010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so available to providers of out put service. 12. In our considered view, an identical issue and in respect of the very same provision, having been settled by the jurisdictional, High Court; we need not look any further. Respectfully following the ratio laid down by the Hon'ble High Court, we hold that the. appellant is eligible to avail the Cenvat credit of the input services for the period prior to 14.03.2006 and being eligible to claim refund of the unutilised Cenvat credit, he cannot be denied We set aside the impugned order to this extent on the same. this point. 4.5 From the perusal of the above order of tribunal while remanding the matter it is evident that tribunal has held that the appellant is eligible to avail the Cenvat Credit of the input services for the period prior to 14.03.2006. It is not even the case of revenue that the CENVAT Credit is not available in respect of these services however said credit has not been reflected in the return filed by the appellant during the period 2005-06 or as opening balance in the ST-3 return filed for the period April to September 2006. As per (D) ENCLOSURES:- (iv) of Form A , appended to Notification No. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the amount claimed in the refund claims. In my opinion, the refund claim is not based on ST-3 returns and ST- 3 return is nothing but a report of transactions that have taken place over a period covered by the returns. On the ground that the figures in ST-3 returns were not correct or there was a substantial difference, refund claim cannot be rejected. For the purpose of consideration of refund claim, the relevant documents on the basis of which credit was taken, nature of service and its nexus and utilization of the service for there was some mistake in the ST-3 returns, substantive right of assessee for refund cannot be rejected. Therefore, I do not consider it necessary to consider the issue as to whether figures in ST-3 returns tallied with the amounts claimed in the refund claims or not. Jagdamba Polymers Ltd. [2010 (253) ELT 626 (Tri. Ahmd.)] 4. I have considered the submissions made by both the sides. I agree with the learned advocate that failure to reflect the Cenvat credit balance in the ER-1 return is only a procedural omission and in the normal course credit could not have been denied and should not have been denied on this ground. I also find that i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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