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TMI Blog2023 (10) TMI 959X X X X Extracts X X X X X X X X Extracts X X X X ..... y change in order portion which in any case was in accordance with the claim made by the appellant - Revenue has not filed any appeal either before Commissioner (Appeals) or before this Tribunal for seeking modification of the refund of Rs.19,00,00,000/- (rupees Nineteen Crores only) allowed by the Assistant Commissioner. As the show cause notice issued involved in this appeal has not invoked the provision of Rule 14, therefore, any finding regarding admissibility of CENVAT credint in the impugned Order-in-Original, the impugned Order-in-Appeal or in this Final Order will not have any effect on any proceedings, if any, regarding the admissibility of Cenvat credit. Interest as per Section 11BB - HELD THAT:- As per Section 11BB interest is to be paid after expiry of three months from the date of filing the claim to the date of claim. In the present case refund claim was filed on 27.12.2012 the period of three months will be over on 26.03.2013. They would be entitled to the interest for the period beyond 26 March, 2013 to the date of payment i.e. 21.05.2013, which is about 55 days. To that extent appeal is allowed in favour of the appellant. Appeal is partly allowed for gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Representative appearing for the revenue. 3.2 Arguing for the appellant learned Advocate submits that- Eligibility of Cenvat Credit cannot be questioned at the stage of refund. As has been held in following decisions:- Gemini Software Solutions Pvt. Ltd. Vs Commissioner of Central Excise, Customs and Service Tax, Trivandrum, 2020 (1) TMI 844-CESTAT Bangalore. Microsoft Global Services Center (India) Pvt. Ltd. and Microsoft India (R D) Pvt. Ltd. Vs Commissioner of Customs, Central Excise Service Tax, Hyderabad-IV, 2021 (44) GSTL 264 (Tri.-Hyd.). HCL Comnet Systems and Services v. CC CE ST, Noida, 2016 (8) TMI-1236-CESTAT ALLAHABAD, upheld by the Hon'ble Allahabad High Court vide 2017 (12) TMI 1661 - Allahabad High Court Allied Chemical Pharmaceuticals Pvt. Ltd. vs. CCE ST, Jaipur-1, 2019 (2 TMI 849 CESTAT NEW DELHI Computer Science Corporation India Pvt. Ltd. v. CCE, Noida, 2017 (7) TMI 760-CESTAT ALLAHABAD CCE, NOIDA v. Free Scale Semiconductors India (P) Ltd., 2017 (4) TMI 1238 - CESTAT ALLAHABAD EXL Service. Com (India) Pvt. Ltd. v. CCE, Noida, 2017 (8) TMI 1002 - CESTAT ALLAHABAD EXL Service Com (India) Pvt. Ltd. v. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tended by the exporter that pest control services were taken in the premises and were essential in nature. Without these services provision of any service was not to be imagined. Despite the submissions of the exporter calling these services as essential, I do not see any relationship between the pest control measures taken and the services exported. Export of services remain unaffected even if pest control measures are not under taken and hence are not essential for running the business. The exporter is not entitled to credit of Rs.33872/- and Rs.12176/- 8.3 At serial No 2 of the table of the Show cause notice dated 6.5.2013 refund on Additional Car parking has been proposed to be disallowed. I have gone through the reply of the exporter who have stated that Car parking is located within the business premises and are part of the premises of the company from where they are exporting their output service. It has also been stated by them that the same is used by the employees of the company for smooth functioning of the business. I have weighed the reply of the exporter and since it has been admittedly stated that the parking is for the use of employees, I am of the view that su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mparing the two documents no nexus can be established that the invoice and agreement is related to each other. Thus the exporter is not entitled to refund of Rs.25750/- paid as service tax on such service. 8.7 The party has not given any reply in respect of allegation raised in sl umber 8 of the table of the show cause notice. They have also not stated anything in their support during the course of the personal hearing. Since they have nothing to say in their claim, I reject their claim of Rs.5721/- claimed on invoices mentioned in serial number 8 of the table. 8.8 I have gone through the reply of the party in respect of serial number 10 of the table of the show cause notice. According to them the invoices pertain to sewage tank cleaning (Cleaning services), drinking water testing and analysis service, maintenance service of RO for drinking water and emission testing and analysis, and noise monitoring. In my view such service are essential not only for clean environment but also for effective pollution control. Therefore, the exporter is entitled to refund amounting to Rs.76085/- paid as service tax on such service. 8.9 I have gone through their reply in respect of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reject their refund claim of Rs.3554/- pertaining to such service. 8.13 I have gone through their reply in respect of point number 28 of the table of the show cause notice They have claimed Cenvat credit on invoices pertaining to Event management Service. They have stated that the Company has organized meeting/events for the purpose of conveying the direction with regard to the business policy and system of the company to its employees. They have not filed any documents of their contention and the nature of service received is not clearly forthcoming in the invoices.. Therefore, the refund of Cenvat credit involved in such invoices amounting to Rs.531859/- appears liable for rejection. 8.14 I have gone through their reply in respect of point number 29 and 30 of the table of the show cause notice It has been stated that the service has been received by them for promoting its products/services. According to them such services are specifically added in the definition of input services as they have claimed Cenvat credit on invoices pertaining to Sponsorship Services and Advertising agency. So far as the exporter's submission regarding the essentiality of Advertisement ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be that the order do not decide the admissibility of credit which could have been questioned only by way of a show cause notice in terms of Section 14 as has been held by various decisions referred in submissions of the Counsel. 4.5 However, in the present case even after considering that amounts to be ineligible for refund. Assistant Commissioner by applying the formula as prescribed by Rule 5 has concluded that admissible refund to the appellant is same as the refund claimed by the appellant and has allowed the refund of entire amount as claimed by the appellant. The relevant paras of the order in original are reproduced below: 8.10. . The admissibility of the refund claim amount is calculated as under:- 8.10.1 As per verification of the Statutory auditor in Attachment V total turnover during period January 2012 to March 2012 has been shown as Rs. 8,39,94,01,356/- Export Turnover as Rs 7,60,00,42,632/-. The amount of Cenvat Credit taken during this period is Rs 38,80,51,596/- out of which the credit utilized is Rs 9,28,83,498/-. After further deducting amount of Rs 21,28,538/- from the Cenvat Credit taken during the month the maximum eligibility of refund as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant Commissioner has nowhere said so she only find this amount to ineligible for refund, but even after holding them to be ineligible for refund has allowed the refund claim filed by the appellant in toto. 4.8 Appellant filed an appeal before the Commissioner (Appeals) not against the order of the Assistant Commissioner but against these observations made in the discussions and findings of the order. Commissioner (Appeals) modified these findings without any change in order portion which in any case was in accordance with the claim made by the appellant. 4.9 Revenue has not filed any appeal either before Commissioner (Appeals) or before this Tribunal for seeking modification of the refund of Rs.19,00,00,000/- (rupees Nineteen Crores only) allowed by the Assistant Commissioner. 4.10 We find that appeal lies against the order and not some findings recorded in the Order-in-Original which may be relevant or irrelevant for the matter. Accordingly, we do not find any merits in the appeal filed before either Commissioner (Appeals) or before us. It is the submission of the appellant that the refund claim for the amount filed by them has been allowed by the Assistant Commissioner, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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