Order Date – 27 September 2023

Parties: M/s Samsung India Electronics Pvt. Ltd Vs Commissioner of Central Excise & Service Tax, Noida

Facts –

• The Appellant, M/s Samsung India Electronics Pvt. Ltd, filed a refund claim on 19.02.2013 in respect of accumulated Cenvat credit of Service Tax paid on such input services in terms of Rule 5 of the Cenvat Credit Rules, 2004 read with Notification No.27/ 2012-CE(NT) dated 18.06.2012.
• A show cause notice was issued proposing to disallow refund of Cenvat Credit availed on various input services by the Appellant under Rule 3 read with Rule 2(l) of the Rules on the ground that credit was availed for payment of rent for an unregistered premise, service of Pantry Boy does not appears to be admissible input service.

Issue –

• Whether the appellant is entitled to refund?

Order –

• The Tribunal observed that without initiating the proceedings in terms of Rule 14 of CENVAT Credit Rules, 2004 read with Section 73 of the Finance Act, 1994, CENVAT credit cannot be denied during the refund proceedings under Rule 5 ibid.
• In terms of the provisions of Rule 5 read with Notification No.27/ 2012-CE(NT), the whole credit availed during the relevant period shall be taken into consideration without regard to the fact whether it pertains to the services received earlier or invoices received earlier. This is not restricted to the services received during the relevant period.
• Thus, all the credit which has been availed during the relevant period shall form part for determining the 'Net Cenvat Credit” on the basis of which the refund claim is made, irrespective of the fact that the same pertains to the invoices which were issued earlier.
• Adjudicating authority should have allowed back the credit of entire amount of refund denied, to the appellant by his order and the appellant could have utilized the same for his domestic clearances. Having not done so adjudicating authority has gone beyond the provisions of CENVAT Credit Rules and Notification No.27/2012-CE (NT) dated 18.06.2012.
• As the law exists now the entire amount which was debited by the appellant at the time of filing this refund claim should be allowed as cash refund to the appellant in terms of Section 142 of the CGST Act, 2017.