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Refund has been denied to the appellant on the ground that refund of Cenvat credit had been claimed in respect of input services received by the appellant after the period of export and hence cannot be considered as input services used for the purpose of exported service during the period in question. This is a fact on record that these input services were received after the period of export and this fact is not challenged by the appellants. I find that the Hon’ble High Court of Karnataka has examined admissibility of refund under Rule 5 of the Cenvat Credit Rules, 2004 in case of Shell India Markets (P.) Ltd. v. CCE 2012 (278) ELT 50 (Kar.)and the Hon’ble High Court in para 7 of its judgment has held as under:-
Benefit of SSI exemption Notification No.6/2005-ST dated 01.3.2005 as amended vide Notification No.8/2008-ST dated 01.3.2008, grants the benefit of exemption of service tax per year, provided that the assessee has not crossed the threshold limit of rupees ten lakhs in the preceding financial year.
No where in the Central Excise Act as well as in the Cenvat Credit Rules not prescribed any period in which credit has to be taken. Although it is mentioned in the Cenvat Credit Rules that assessee can take the credit immediately, but there is no prescribed time limit neither in the Cenvat Credit Rules nor in the Central Excise Act
Installing projects of high technical equipment is nothing but Modernisation of a factory and as per Cenvat credit Rules, 2004, services used in relation to modernisation are eligible for Cenvat credit.
In the instant case, the service rendered is promotion/marketing of the goods of the client in India by rendering various services such as demonstration, installation, after sales warranty and advertising services for which the appellant received a consideration. These activities are rendered in India and their effective use and enjoyment are in India and therefore, the benefit of the services rendered also accrue in India and hence leviable to service tax.
Whether the Cenvat credit can be denied on the ground that the invoice number was handwritten or rubber stamped but not printed on invoice? The appellants are in appeal against the impugned orders wherein input credit taken by them on duty paid invoice was denied only on the basis that the invoice number was handwritten or rubber stamped but not printed.A show-cause notice was issued and demands were confirmed by both the lower authorities. Aggrieved from the said orders, an appeal was filed before the CESTAT-Mumbai.
Coming to the cenvat credit proposed to be denied on the ground that services were used for both exempted and non exempted goods as per the denial of proportionate credit as per the OIA, it has to be noted that admittedly the first appellant was engaged in the manufacture of animal feed which is exempted and was also engaged in trading activity. That being the position, the first appellant was obliged by law to maintain separate records failing which reverse the credit relatable to the trading activity.
The definition of ‘input service’ provided under rule 2(l) of CENVAT Credit Rules, 2004 covers a gamut of activities relating to the business undertaken by the manufacturer or the service provider. In the case under consideration the appellant has used the vehicles owned by them either for transportation of their employees or for transportation of goods which is an integral part of the business of appellant-firm.
Thus in case of service tax also the Commissioner (A) is not empowered to remand the matter, he has to decide the matter by himself. Therefore the order of ld. Commissioner (Appeals) remanding the case to the lower authority, is not sustainable.
One for transfer of business goodwill and the other for collection, delivery and handling of fly ash on which service tax liability is being discharged. By no stretch imagination, payment of goodwill on transfer of business can come under the category of business auxiliary services; therefore, we do not find any merit in the Revenue’s appeal.
