M/s. Diaspark Infotech Pvt. Ltd. Versus CGST, CE & CC, Indore
Service Tax
2019 (1) TMI 1241 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 14-1-2019
Service Tax Appeal No. ST/51520/2018-ST [SM] – FINAL ORDER NO. 50067/2019
Service Tax
MRS. RACHNA GUPTA, MEMBER (JUDICIAL)
Present for the Appellant: Mr. Manish Saharan, Advocates
Present for the Respondent: Mr. P.R. Gupta, D.R.
ORDER
PER: RACHNA GUPTA
Present appeal has been directed against order in appeal No. IND-EXCUS-000-APP-756-17-18 dated 26.03.2018 passed by the Commissioner (Appeals), CGST & Central Excise, Indore.
2. The facts relevant for the adjudication are that the appellant provides an output service, which was exported without payment of service tax. Since they were entitled for availing cenvat credit that the appellant vide a refund claim for Rs. 6,43,603/- vide their application dated 29.12.2016. However, vide show cause notice No.2574 dated 28.04.2017 the rejection of the said refun
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e at the end of quarter for which refund claim is being made or at the time of filing of the refund claim, whichever is less. It is submitted that though inadvertently in the impugned ST-3, the balance was shown 'Nil'. But it was highly inappropriate on the part of the adjudicating authorities below to ignore the relevant documents as were submitted by the appellant to show the existing balance in accordance whereof the impugned refund was filed. Ld. Counsel has impressed upon that while replying the show cause notice itself, a Certificate from the Chartered Accountant certifying the claim of accumulated cenvat credit of Rs. 6,43,606/- was furnished. Alongwith the said certificate all the requisite declarations and documents as that of invoices were also submitted still the authority below has emphasized merely on ST-3 returns despite the fact that request for submitting for the correct returns was placed before the Range Superintendent rather twice which were not considered. Ld. Couns
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only within a period of 90 days that too electronically. None, admittedly, was the case of the appellant. The impugned modification was proposed after a gap of 8 months. The Commission (Appeals) has rightly adjudicated the controversy in the given circumstances. Appeal is accordingly, prayed to be dismissed.
6. After hearing both the parties and perusing the entire record, I find that it is an admitted fact that the appellant is providing an output service, which was exported but appellant was entitled to credit, due to which, the impugned refund was filed by the appellant. I also find that the adjudicating authority below have rejected the refund claim holding that one of the conditions of Notification No.27/2012 has not been complied upon. The said condition No. (g) is one among various conditions (a) to (i) as provided in the Notification and it reads as under:-
(g) the amount of refund claimed shall not be more than the amount lying in the balance at the end of quarter for which
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r the impugned period is showing 'Nil' balance, had requested the Department vide their letter dated 28.12.2016 and subsequently vide letter dated 16.01.2017 to permit the submission of revised ST-3 return for the impugned period so as to rectify the mistake of cenvat credit figures, but the same has been denied by the Department. Though reliance upon rule 7 B of Service Tax Rules has been placed. According to which a revised ST- 3 return can be filed by an assessee within a period of 90 days and the said rule is taken as a ground to reject the request of the assessee/appellant to submit the revised ST-3 return, but I am of the opinion that Rule 7 B will have no substantive implication in a case where the assessee has cogent documentary evidence to support that the proposed revision of ST-3 is utmost important. In the present case, the ST -3 is showing nil balance, whereas the voluminous documents of the appellant are showing the balance of Rs. 6,43,603/- lying in the account for the i
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e of procedure is altered, he has no other right than to proceed according to the altered mode. A procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed.”
9. In another decision in the case of Salem Advocate Bar Assn. v. Union of India reported in 2005 (6) SCC 344 the Hon'ble Apex Court has considered the question as to whether the Court has any power or jurisdiction to extend the period beyond 90 days. It was held as follows:-
“It has been common practice for the parties to take long adjournments for filing written statements. The legislature with a view to curb this practice and to avoid unnecessary delay and adjournments, has provided for the maximum period. The mandatory or directory of such provision shall have to be determined by having regard to the object sought to be achieved by the amendment. It is, thus
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as follows:-
“In view of the provision of Rule 7C of the Rules, the revised return cannot be ignored simply on the ground that the same has been filed after a period provided under Rule 7B of the Rules. In these circumstances, we find that the matter requires re-consideration by the adjudicating authority in view of the provision of Rule 7C of the Rules. The impugned order is set aside, after waiving pre-deposit of the amount of service tax, interest and penalty and the matter is remanded to the adjudicating authority to decide the issue afresh after offering an opportunity of hearing to the appellant. The appeal is allowed by way of remand.”
12. This Tribunal in the case of Serco Global Services Pvt. Ltd. vs. Commissioner of Central Excise, Delhi-III reported in 2015 – TIOL – 1044-CESTAT-Del. has held that even if ST-3 return for a particular period do not show any unutilized balance of cenvat credit, the refund still is to be granted on the basis of cenvat credit available in cenv
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