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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 ..... les, 2004 read with Notification No.05/2006-CE(NT) dated 14.03.2006 for the period January, 2012 to March, 2012. 2.2 Taking note of the verification report dated 28.03.2013 submitted by the Superintendent Service Tax, Noida, a show cause notice dated 30.04.2013 was issued to the appellant, asking them to show cause as to why their refund claim to the extent of Rs.23,39,587/- may not be rejected for the reasons that certain credit which has been claimed as refund claim under Rule 5 was not admissible to them. 2.3 This show cause notice was adjudicated by the Assistant Commissioner Central Excise, Noida vide order dated 21.05.2013 by holding as follows:- "ORDER I, hereby, Sanction the refund claim of Rs.19,00,00,000/- (Rupees Nineteen Crore Only) to M/s HCL Technologies Ltd., A-10-11, Sector-3, Noida in terms of Circular No.120/01-ST dated 19.01.2010 as discussed above, under rule 5 of CENVAT Credit Rules, 2004 read with Notification No.05/2006-C.E. dated 14.03.2006. A cheque bearing No.494540 dated 21.05.2013 of Rs.19,00,00,000/- is enclosed." 2.4 Aggrieved by the above order appellant filed appeal before the Commissioner (Appeals), which has been disposed of the appeal by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eiterates the findings recorded in the impugned order. 4.1 We have considered the impugned order alongwith the submissions made in the appeal and during the course of arguments. 4.2 Undisputedly, in the present case appellant has filed a refund claim of Rs.19 Crores and it is evident from the Order-in-Original that refund of the same amount i.e. Rs.19 crores, has been allowed by the Assistant Commissioner, Customs, Noida and cheque for the same amount has been issued by the Assistant Commissioner to the appellant. When the amount as claimed and the refund claim filed has been sanctioned in toto where can there be any further dispute arisen, for the appellant to be aggrieved with. Might be appellant is aggrieved by certain portions of the order which are recorded in following paras- "8.1. In the defense reply dated 6.5.2013 the exporter has withdrawn their refund claim in respect of allegations made out in para 3, 6, 13 to 17, 23, and 25 to 27. Since the refund claim amounting to Rs.53005/- pertaining to these paras has been suo moto withdrawn by them, no further discussion is required. 8.2. At serial No.1 and 9 of the show cause notice, proposal is for denial of refund of ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reply of the exporter in respect of allegation made out in sl number 5 of the table of the show cause notice pertaining to refund of service tax paid on charges paid for pantry boy. The exporter has stated that the service is related to Manpower supply. The vendor has supplied manpower for various supporting jobs such as offering tea coffee to the staff and other supporting service. In my view such service is solely for the convenience of the employees and is no way connected to providing output service. The exporter is therefore not entitled to refund of service tax paid on such service. The refund amounting to Rs.719/- claimed on such service is disallowed. 8.6 I have examined the reply of the exporter in respect of allegation made out in s! number 7 of the table of the show cause notice pertaining to refund of service tax paid on charges paid for Consulting (description not mentioned). In the reply the exporter has stated that the service provider has provided IT Software consultancy service and have also provided copy of invoice as well as agreement dated 9.5.2012 with them. I have examined the same and find that while the relevant invoice has been raised by one PNS Consulta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice tax has been paid after including such expenditure/costs, the exporter shall be entitled to refund of Rs.47005/- and 10672/- on such out of pocket expenses and loan staffing. 8.11 Now I come to serial 22 of the show cause notice. It has been stated in their reply that garden maintenance is essential for upkeep of the office premises. It is a fact that a garden adds to the beauty of the work place but I do not see any relationship between the maintenance of garden and the services exported. Maintenance of garden is not eligible for cenvat credit and the exporter is not entitled to refund of credit of Rs.6586/-. 8.12 Now, I come to serial 20 of the show cause notice. It has been stated in their reply that they have taken office premises on rent from West Bengal Electronics Development Corporation Limited and that the premises is registered in Service Tax and that they are providing taxable services from there. Apart from Rent, WBEDCL has also recovered maintenance charge of the said premises. However, on examining the invoices produced by the party I find that no such description is forthcoming in them and the exporter has not filed any supportive document which could corr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nies as well. I therefore, disallow them refund of Rs.236559/-/- and Rs 1063135/-/- pertaining to Sponsorship service and Advertisement service respectively. 8.10 The exporter is therefore not entitled to refund of credit of Rs. 20,75,533/- on the above lines in addition to the amount of refund of Rs. 53,005/- which has been withdrawn by the exporter. Thus total amount of refund of credit to which, the exporter is not entitled is Rs.21,28,538/- (Rs. 20,75,533/- + Rs. 53,055/-)." 4.3 The aforesaid paras have challenged before the Commissioner (Appeals) and the Commissioner (Appeals) by the impugned order disposed of the appeal as indicated in para-1 above. 4.4 Rule-5, as amended in 2012, does not require the refund claim filed by the appellant, to be examined determining admissibility of credit against which refund claim is filed. It only requires examination of the refund claim vis-à-vis the whole credit availed during the quarter and the total turnover and the export turnover having on the basis of such examination even after allowing certain amounts inadmissible for refund Assistant Commissioner has in the present case concluded the entire amount of refund claim of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discussed above. 9. Vide their letter dated 08.05.2013 exporter have also informed about the debit of an amount of Rs. 19,00,00,000/- which is equal to refund claimed, from their Cenvat Credit Account. In support they have submitted a copy of relevant accounting document no 5000235991 dated 27.12.2012 in compliance to Notification No 27/2012-CE (NT) dated 18.06.2012." 4.6 We do not find any reason to interfere with the order of the Original Authority whereby the refund amount of Rs.19,00,00,000/- (rupees Nineteen Crores only) as claimed by the appellant has been allowed. As the amount of refund allowed is equal to the amount as claimed by the appellant, the appellant could not have been aggrieved by the order of the Assistant Commissioner. 4.7 In absence of any proceedings under Rule 14 of Cenvat Credit Rules, 2004 observations recorded by the Assistant Commissioner in above paras 8.1 to 8.10 of the order in original reproduced earlier are only in nature observation cannot be taken as denial of the credit. Even Assistant 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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