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TMI Blog2025 (1) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 5 of Credit Rules. As the credit has not been denied under Rule 14, therefore the same is available to the Appellant and a refund of the same is to be allowed under Rule 5 of the Credit Rules. Even as per Rule 5 and Notification No. 27/2004, the requirement was to ascertain whether services were exported and whether the balance of CENVAT Credit as claimed is available with the assessee or not. It was not the requirement to ascertain the correctness of admissibility of CENVAT Credit at the stage of refund proceedings. The reasons based on which the Department filed the appeal before the Commissioner (Appeals) were not legally tenable and justified. The provisions of Rule 5 or the Notification No. 27/2012 do not require one-to-one correla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Appellant during the period April 2012 to June 2012 (the relevant period) was engaged in providing and exporting taxable services namely Information Technology Service, Maintenance and Repair Services, Technical Testing and Analysis Service and Business Support Service and availing Cenvat Credit of the service tax paid on various service received by them. The Appellant could not utilize the CENVAT Credit as the service tax was not payable on export of services, therefore, the Appellant was filing claims for the refund of the accumulated CENVAT credit under Rule 5 of the Cenvat Credit Rules 2004. 3. The Appellant filed a refund claim for Rs. 14,13,72,420/- on 22.03.2013 under Rule 5 of the Cenvat Credit Rules, 2004 read with Notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d relationship with the export service. 8. The Commissioner (Appeals) rejected partially the appeal filed by Appellant-Assessee to the extent of Rs. 48,66,220 and allowed the appeal of the department in full. However, the Commissioner (Appeals) passed two separate Orders-In-Appeal. The Appellant-Assessee preferred appeals before this Tribunal against such Orders-in-Appeal because such Orders-in-Appeal were not passed simultaneously. The Tribunal remanded the appeals with a direction to pass a single order simultaneously in appeals filed against a single order. Though, the Department filed an appeal before the Hon ble High Court of Allahabad against the remand direction of the Tribunal, however, the same was rejected. Thereafter, the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the service was provided from outside India so the service provider was not bound to follow the procedure of Rule 4A of the Service Tax Rules to issue invoices. The Appellant-assessee based on the debit notes paid the service tax through challan on reverse charge basis. Thus, the Appellant-Complied with the legal requirement. Neither Rule 5 nor Notification No.27/2012 required one to one correlation of the input service with the export service. The only requirement was to ascertain the availability of the balance of the CENVAT Credit and export of the services. Further, without issuance of a show cause notice by invoking Rule 14 of the CENVAT Credit Rules, the balance of CENVAT Credit cannot be disputed and denied. 10. Learned Departmenta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4) G.S.T.L. 264 (Tri. - Hyd.), wherein it was held as under:- 8. Rule 3 (1) ibid is the enabling provision, which entitles a manufacturer or provider of output service for availment of Cenvat credit of various duties and service tax paid on the inputs/input services. The manner of utilisation of such credit is contained in sub-rule (4) of Rule 3 ibid. In the event, where the Cenvat credit has been wrongly taken or utilised, Rule 14 ibid mandates for recovery of such irregularly availed credit from the service provider, in the manner prescribed under Section 73 of the Finance Act, 1994. The basic requirement for effecting recovery of the Cenvat credit under the said statutory provision is for initiation of show cause proceedings within the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the Department filed the appeal before the Commissioner (Appeals) were not legally tenable and justified. The provisions of Rule 5 or the Notification No. 27/2012 do not require one-to-one correlation of the input services with the output services exported by the Appellant. The foreign service provider was not an Assessee under the Finance Act, 1994 and documents were not issued in terms of Section 4A of the Act. However, the Appellant being an Assessee in India, paid the service tax on reverse charge basis under the appropriate service classification and such payment was accepted by the department. Further, the absence of invoices in terms of Rule 4A of the Service Tax Rules does not disentitle the Appellant to claim refund of the CENVAT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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