2018 (12) TMI 731 – CESTAT MUMBAI – TMI – Refund of CENVAT Credit – rejection on the ground of limitation – Section 11B of CEA – Held that:- Admittedly, refund claim was made on 30.07.2015 for the period ending March 2014 and in view of clause (f) of Explanation B to Section 11B of the Central Excise Act 1994, date of payment is to be taken into consideration for computation of one year period to file the refund application. In its order dated 19.02.2016, the original adjudicating authority has given his clear finding under para 5 that provision of Rule 6(3) of the Service Tax Rules, 1994 deals with such a situation and the same is fully applicable to the present refund claim.
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It is an admitted fact that appellant was not put to notice before the rejection of its claim except being asked to submit copies of documents like invoices, GAR-7, cenvat claim certificate, copy of purchase order, work order, work sheet etc. and there is no noting available in the order-in-original as to
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) for the respondent ORDER Eligibility to avail cenvat credit for the amount claimed in the refund application that was rejected on grounds of limitation is the subject matter of this appeal. 2. Facts giving rise to this appeal is that appellant company executed certain maintenance, repairing and construction work for Mazgaon Doc Ltd. (MDL) and Tata Power through work contract agreement and after completion of the work, rate was reduced on renegotiation by both firms against which appellant raised credit notes to their customers for differential rate in the value of services provided and service tax component. The refund claim for excess service tax paid between the period April 2013 to March 2014 amounting to ₹ 28,18,361/- was filed on 30.07.2015 and the adjudicating authority rejected the refund claim filed under Section 11B on the ground that the same was not filed within the stipulated time. Appellant has not challenged the rejection order but put forth its claim with referen
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ending March 2014 and in view of clause (f) of Explanation B to Section 11B of the Central Excise Act 1994, date of payment is to be taken into consideration for computation of one year period to file the refund application. In its order dated 19.02.2016, the original adjudicating authority has given his clear finding under para 5 that provision of Rule 6(3) of the Service Tax Rules, 1994 deals with such a situation and the same is fully applicable to the present refund claim and he has also noted in para 6 to have verified the records and found that service tax was not paid solely in cash and paid in both cash as well as adjusted against cenvat credit available at the claimants end. He also noted the claimant did not receive the value of the services provided under the Service Tax Rules for which refund is claimed. Further, the Commissioner (Appeals) in his order dated 10.01.2018 also noted that after finishing the work the rate was reduced by MDL from ₹ 150/cubic mtr. of dredgi
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of Rule 6(3) after refusal of refund claim made under Section 11B of the Central Excise Act, it is now to be found out if Commissioner (Appeals) is empowered to grant such a relief which was not sought by the appellant before the adjudicating authority. 6. It is an admitted fact that appellant was not put to notice before the rejection of its claim except being asked to submit copies of documents like invoices, GAR-7, cenvat claim certificate, copy of purchase order, work order, work sheet etc. and there is no noting available in the order-in-original as to if alternative plea for availment of cenvat credit was made before the adjudicating authority or not. But as found from the order of the Commissioner (Appeals) that it had made request before him for adjustment of excess payment but such relief was refused as it was not the subject matter of appeal. Going by Section 35A(3) of the Central Excise Act, which is equally applicable to service tax matters, the Commissioner (Appeals) shal
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ive adjudication. This fact is further fortified by the decision of the Hon'ble Supreme Court reported in M.P. Steel Corporation vs. CCE 2015 (319) ELT 373 (SC) wherein spirit of Indian Limitation Act was pressed into service for condoning delay in filing appeals. Therefore, it would not be irrational to invoke order 7 rule 7 of the Civil Procedure Code, which empowers a court to grant such other relief which may always be given, as a court may think just, to the same extent as if it has been asked for. In borrowing the spirit from the provision of the CPC, the following order is passed:- 8. The appeal is allowed in part entitling the appellant to avail cenvat credit for the refused refund claim of ₹ 28,18,361/- and the period of availment of such credit shall commence after the statutory appeal period of appeal is over. Order of the Commissioner (Appeals) is accordingly modified. (Pronounced in Court on 20.11.2018) – Case laws – Decisions – Judgements – Orders – Tax Manage
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