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TMI Blog2024 (9) TMI 925X X X X Extracts X X X X X X X X Extracts X X X X ..... input services and output services. In both the cases, the issue is that of taking of Cenvat credit on ineligible services. It is also an admitted fact that no SCN was issued in terms of Rule 14 to recover Cenvat credit on account of such ineligible services. The refund under Rule 5 is filed for the Cenvat credit already taken on record by the Appellant. Only when the refund claim under Rule 5 was filed while scrutinizing the refund claim, this point was raised and part of the refund claim was rejected solely on this ground. This issue is no more res integra. In the case of Qualcomm India Pvt Ltd [ 2019 (8) TMI 1645 - CESTAT HYDERABAD] , this Tribunal has held ' it can be said that taking of Cenvat credit on the disputed services by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the extent of Rs.71,52,797/-. In respect of Appeal ST/21946/2014, the Department issued discrepancy memo calling for certain additional documents. After adjudication, refund of Rs.55,59,165/- was disallowed. In respect of Appeal ST/21683/2014, no SCN/discrepancy memo was issued. After adjudication, refund of Rs.93,10,448/- was disallowed. Being aggrieved by non-granting of refunds, the Appellant is before the Tribunal. 2. Learned Counsel appearing on behalf of the Appellant submits that the only ground on which the refund was denied was on the ground that there was no nexus between the input services and output services and hence the Appellant is not eligible for Cenvat credit. He submits that in case the Department took the view that ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services. It is also an admitted fact that no SCN was issued in terms of Rule 14 to recover Cenvat credit on account of such ineligible services. The refund under Rule 5 is filed for the Cenvat credit already taken on record by the Appellant. Only when the refund claim under Rule 5 was filed while scrutinizing the refund claim, this point was raised and part of the refund claim was rejected solely on this ground. 6. We find that this issue is no more res integra. In the case of Qualcomm India Pvt Ltd (cited supra), this Tribunal has held as under:- 6. Rule 3 of the Cenvat Credit Rules, 2004 is the enabling provision, which entitles a manufacturer of excisable goods and the provider of output service to take Cenvat credit of the duties and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 refund benefit provided under Rule 5 ibid, in our considered opinion, cannot stand for judicial scrutiny. Since the department has not specifically alleged regarding actual exportation of services by the assessee-appellant and use/utilization of disputed services for such activities, benefit of refund should be available in terms of the unambiguous provisions contained in Rule 5 ibid, subject only to adherence of the formula laid down thereunder. The Learned Advocate appearing fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have no nexus with the output service, in our considered view, cannot be held to be justified. 17. Further, it is to be noted that these appeals relate to period prior to amendment made to Rule 5 of Rules w.e.f 01.04.2012 and also thereafter. In so far the claim for refund of CENVAT credit for the period prior to 01.04.2012 is concerned, as Rule at the relevant point of time did not contain any prescription as to the nexus between input services and output service, the denial of refund on the said ground cannot be held to be valid. For the period subsequent to the introduction of substituted Rule 5 of Rules, the only prescription for grant of refund in respect of export of output service is by applying the formula specified. 18. The Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X
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