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TMI Blog2024 (5) TMI 1223X X X X Extracts X X X X X X X X Extracts X X X X ..... order to the extent of rejecting refund amount of Rs.7,29,970/- is set aside and remaining part of the impugned order is upheld. Accordingly, impugned order is modified to this extent. Appeal is allowed. - HON BLE MR. SANJIV SRIVASTAVA , MEMBER ( TECHNICAL ) Shri Yuvraj Singh , Advocate for the Appellant Shri Manish Raj , Authorised Representative for the Respondent ORDER SANJIV SRIVASTAVA : This appeal is directed against Order-in-Appeal No.NOI-EXCUS-001-APP-1250-19-20 dated 10/12/2019 passed by Commissioner (Appeals) Central Goods Services Tax, Noida. By the impugned order following has been held:- 5.1 The details of refund claim rejected by the adjudicating authority on input services can be summarised as under:- a. CENVAT credit availed after expiry of six months from the date of issue of invoices-Rs 729970/- b. CENVAT credit not covered under input services lunch and dinner charges, Rs.25,288/- and pantry and mobile charges Rs.10,043/- C. Inadmissible CENVAT credit taken on invoices addressed to the unregistered premises. Rs.7,18,070/-. 5.3 I proceed with point no.(a)- CENVAT credit availed after expiry of six months from the date of issue of invoices- 5.3.1 I find that Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l goods received in the factory of manufacture of final product or premises of the provider of output service on or after the 10th day of September, 2004; and (ii) any input service received by the manufacturer of final product or by the provider of output services on or after the 10th day of September, 2004. The expression input service' is defined in Rule 2(1) as follows (1) input service means any service, - used by a provider of taxable service for providing an output service; or used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products, up to the place of removal. and includes . 5.5.2 I observe that the place where the input service is received is not relevant for determining the availability of the credit on such input service and once a service satisfies the definition of input service a service provider/manufacturer will be eligible for taking cenvat credit of service tax paid on such a service even if the service is received outside the premises as the Rule 3 of CCR 2004, does not prescribe that the input services has to be received at the registered premises only. 5.5.3 I further ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 5.5.6 Further in the case of Commm. of S.T.. Bangalore vs. Tavant Technologies India PVT. Ltd., 2016 (43) S.T.R. 57 (Kar.), the Hon'ble High Court, while dismissing the appeal of the department held that Cenvat credit - Availment of and refund of unutilized credit - Service Tax registration is not required for this purpose - There is no rule or statutory provision which makes registration condition precedent. [paras 4, 5, 6] 5.5.7 Hence the credit involved to the tune of Rs 7,18,070/-, is admissible and consequently eligible for refund under Notification 27/2012-CE (N.T) read with Rule 5 of the Cenvat Credit Rules, 2004. 6. In view of the facts and circumstances, as discussed herein above and the provisions as stipulated in the statute mentioned, cited case laws and following the principle of judicial discipline, I partially allow the appeal to the appellant by modifying the Order-in-Original No.10/DC/Div-VI/N/2018-19 dated 15/06/2018 to the above extent. 2.1 Appellant has filed a refund claim in terms of Rule 5 of Cenvat Credit Rules, 2004 read with Notification No.27 of 2012-CE(NT) dated 18.06.2012 for the quarter October, 2014 to December, 2014 for Rs.15,95,542/-. 2.2 Afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ench of this Tribunal in the case of Bharat Aluminum Company Ltd. [2019-TIOL-2567-CESTAT-DEL] has held as follows:- 4. We find from the impugned order of Commissioner (Appeals) that the appellant has referred to and relied upon various precedent decisions of the Tribunal laying down that the time restriction of six months would not apply to the invoices issued prior to 01/09/2014. The Appellate Authority, very religiously, mentioned all these decisions in the order but sad enough, did not refer to the same in the operative portion of his order. Very cryptically, Commissioner (Appeals) rejected the appeal by observing that since the law was amended and time limit of six months was laid, the credit availed after the period of six months from the date of the invoice is not available to the assessee. We really fail to appreciate the above conclusion drawn by Commissioner (Appeals) without even whispering about the applicability of various decisions referred to and relied upon by the appellant which clearly covers the issue in their favour. This attitude of Commissioner (Appeals) reflects on his predetermined mind to reject the appeals in a mechanical manner, thus putting the litigant i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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