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TMI Blog2023 (12) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision, which entitles a manufacturer or a service provider to avail CENVAT credit of Central Excise duty paid on the inputs and service tax paid on the input services. The manner of availment and utilization of CENVAT credit is contained in the CENVAT statute. If availment or utilization of the credit is not in conformity with the CENVAT statute, then Rule 14 ibid provides that such irregularly availed or utilized CENVAT credit can be recovered from the assessee and for effecting such recovery, the provisions of Section 11A of the Central Excise Act, 1944 or Section 73 of the Finance Act, 1994 shall apply mutantismutandis - Since, Rule 5 ibid is a self-contained rule, which provides for grant of refund of accumulated CENVAT credit in case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant to utilize the CENVAT credit for payment of service tax. Therefore, in terms of Rule 5 of CENVAT Credit Rules, 2004, the appellant had filed various refund applications before the original authority, claiming refund of service tax paid on the input services for different periods. The refund applications filed by the appellants were adjudicated by the original authority. In the orders, the original authority had partly allowed the benefit of refund and in few cases, had denied the refund benefit, holding that the disputed service namely works contract service were not used in provision of the output service; and thus, Cenvat credit so availed by the appellant is not in conformity with the provisions of Rule 2 (l) ibid. On ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of CGST C. Excise, Mumbai Reported in 2019 (11) TMI 1661-CESTAT Mumbai; (iv) BNP Paribus India Solutions Pvt. Ltd. Vs. Commissioner of CGST, Mumbai East 2020 (2) TMI 224-CESTAT Mumbai; (v) PMI Organisation Centre Pvt. Ltd. Vs. Commissioner of CGST, Mumbai East 2022 (65) G.S.T.L. 244 (Tri. - Mumbai); (vi) JFE Steel India Pvt. Ltd. Vs. Commissioner of CGST, Gurugram, 2021 (44) G.S.T.L. 292 (Tri. Chan.); (vii) BNP Paribus India Solutions Pvt. Ltd. Vs. CST, Mumbai II, 2022 (8) TMI 1I55- CESTAT Mumbai; 3. On the other hand, learned AR appearing for the Revenue reiterated the findings recorded in the impugned order and further submitted that since the appellant did not produce the copy of invoices for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot take recourse to the other provisions in the statute to say that availment of credit or utilization of credit is not in conformity with the statutory provisions. Insofar as claim of refund under Rule 5 ibid is concerned, the department has to only verify whether the requirement of the said rule read with the notification issued thereunder have been fulfilled or not. Rule 5 refund is permissible in case of observance of the formula laid down therein, which the appellant in this case has complied with. Since, the output services were exported by the appellant, the un-utilized CENVAT credit availed on the input services, in our considered opinion, should be available to the appellant. We find that the issue arising out of the present di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the assessee and for effecting the recoveries, the provisions of Section 11A of the Central Excise Act, 1994/Section 73 of the Finance Act, 1994 shall apply mutatis mutandis. It is an admitted fact on record that the department has not invoked the provisions of Rule 14 ibid for effecting recovery of the alleged irregular Cenvat credit availed by the assessee-appellant. Thus, under such circumstances, it can be said that taking of cenvat credit on the disputed services by the appellant is in conformity with the Cenvat statute. Rule 5 ibid nowhere specifies that Cenvat credit can be denied on the ground of irregular availment or utilisation of the same. Thus, in absence of specific provisions contained in the statute, denial of the refu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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