9911796707
TMI Blog2023 (12) TMI 569X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by setting aside the impugned order. - HON BLE MR. AJAY SHARMA , MEMBER ( JUDICIAL ) Shri Mahesh Raichandani , Advocate for the appellant Shri Deepak Sharma , AC ( AR ) for the respondent ORDER Per : AJAY SHARMA This appeal has been filed assailing the impugned Orderin- Appeal dated 10.5.2019 passed by the Commissioner of Central Tax (Appeals), Raigad by which the learned Commissioner while partially allowing the appeal filed by the appellant upheld the rejection of refund of Cenvat Credit of Rs.20,68,081/-in respect of General Insurance service, Security Insurance and Restaurant facility service. 2. The issue arises for consideration herein is whether the learned Commissioner is justified in denying the Cenvat Credit on the aforesaid services by holding the same as ineligible input service in terms of Rule 2(l), Cenvat Credit Rules, 2004? 3. I have heard learned counsel for the appellant and learned Authorised Representative for the Revenue and perused the case records including the written submissions and the case laws placed on record. The issue involved herein is in a very narrow compass and is no more res integra. In the matter of M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Pvt. Ltd. vs. Commr. CGST, Mumbai East; 2022 (58) G.S.T.L. 539 (Tri.- Mumbai)this Tribunal while allowing the appeal of the assessee therein allowed the refund claim u/s. 5 ibid by holding that 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. The relevant paragraphs of the said order are reproduced hereunder:- 5. I have heard Learned Counsel for the Appellant and Learned Authorised Representative for the Revenue and perused the case records including the written submission and the case laws filed 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. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Maersk Global Services Centres (I) Pvt. Ltd. (supra) has extended the refund benefit on the ground that establishment of nexus between the input and the output services cannot be insisted upon. The relevant paragraphs in the said decision is extracted hereinbelow : 7. In this case, the department has not disputed the fact regarding export of output service by the appellant. The dispute raised in the present case were in context with non-establishment of nexus between the input and output services, service description provided in the invoices were not confirming to the input service definition provided under Rule 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: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Marketing Service Pvt. Ltd. v. C.C. GST, Mumbai East; reported in 2021-VIL-466-CESTAT-MUM-ST = 2021 (55) G.S.T.L. 29 (Tri. - Mumbai) vide order dated 17-9-2021 held that the amended Rule 5 ibid does not require establishment of any nexus between input and export services. The rule only provides that the admissible refund will be proportional to the ratio of export turnover of goods and services to the total turnover, during the period under consideration and the net Cenvat credit taken during that period. Indisputably, in the refund proceedings under Rule 5 ibid as amended, any such attempt to deny or to vary the credit availed during the period under 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
