2019 (2) TMI 1252 – CESTAT HYDERABAD – TMI – Refund of unutilized Credit – export of services – Rule 5 of CENVAT Credit Rules, 2004 – rejection on the ground of nexus and also on the ground of non production of documents – Held that:- Appellant admits that they were not able to produce the documents but will be able to do so now. These documents, when submitted by the appellant, need to be considered by the adjudicating authority to decide the admissibility of refund on this count.
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Denial on account of nexus – Held that:- once the credit of CENVAT is allowed, refund of the same cannot be denied. In fact when the CENVAT credit is wrongly availed, the same needs to be recovered from the appellant, by issuing of an appropriate show cause notice.
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As far as the cases where credit was taken when the specific service clearly excluded from Rule 2(l) of CCR 2004 is concerned, it is true that the credit first be denied. However, where the appellant is not entitled to the credit in t
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are on the same issue in respect of the same appellant and hence are being disposed of together. 2. The appellant herein exports software services. They avail the CENVAT Credit on inputs and input services under CCR 2004. After so availing, they have filed a refund claim under Rule 5 of CENVAT Credit Rules, 2004 in respect of inputs and input services which were used in export of services. These refund claims were allowed partly and rejected partly by the original authority. Aggrieved, the appellants filed appeal before the first appellate authority, who, vide the impugned orders, partly allowed the appeals and partly rejected the same. Hence, these appeals. 3. Ld. Consultant for the appellant submits that refund was sought to be denied to them mainly only on four grounds (i) that there was no nexus with the output services which they have exported, (ii) the input service credit was ab initio not available to them because it was excluded from the scope of input services as per Rule 2(l
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period because they had misplaced their records but have since been able to find all the records and will be able to justify each of their claim with proper documentation as required. 4. Ld. DR reiterates the findings of the first appellate authority and explains that to the extent relief was admissible, they were given relief by the first appellate authority. Insofar as the credit which is sought to be denied on the ground that it is specifically excluded under Rule 2(l), it is his assertion that once the credit is not admissible at all, if the appellant has wrongly availed the credit this does not entitle him to the refund of credit. As far as non production of documents is concerned, he would submit that the appellant had submitted some documents before the lower authority and was granted refund to that extent, but had failed to submit some more documents. Subsequently, at the first appellate stage, appellant submitted some more documents and were granted the refund to that extent b
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redit of ₹ 70,881/- on the ground of lack of nexus with the output service and an amount of ₹ 7,05,215/- on the ground that the documents were not submitted or that they were excluded under Rule 2(l) as input services. The first appellate authority has allowed refund of ₹ 57,786/- which was rejected on the lack of nexus and denied refund of ₹ 13,095/- on the ground that the appellants have not insisted on the input credit. Of the credit of ₹ 7,05,215/- rejected by the lower authority, he allowed a refund of ₹ 1,07,625/- and denied the credit of ₹ 5,97,590/- mainly on the grounds that the documents were not submitted or that the service in question was specifically excluded under Rule 2(l) of CCR 2004. (c) Appeal No. ST/30066/2018: In this appeal, the lower authority denied the credit of ₹ 42,386/- on the ground of nexus with the output service and an amount of ₹ 21,72,572/- on the ground that documents were not produced or that the
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4 is concerned, it is true that the credit first be denied. However, where the appellant is not entitled to the credit in the first place, it is inconceivable to refund the same. This pertains to such cases where the rule specifically excludes certain types of services from the scope of input service. As far as the cases where the invoices were not in the name of the appellant are concerned, what is relevant is whether the appellant had received those services in production of their output services, even if there is some error/omission in the name and address in the invoices. As long as the input services/inputs were actually used by the appellant in production of their output services, credit cannot be denied merely on the ground that invoice was not in their name. This requires examination of records in respect of each of such invoices to ascertain factual position. In view of above, I find this is fit case to be remitted back to the adjudicating authority to decide as follows: (a) W
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