2019 (1) TMI 1241 – CESTAT NEW DELHI – TMI – Refund of CENVAT Credit – export of output service – rejection on the ground that the applicant /appellant has failed to fulfil the condition of the Notification No.27/2012 dated 18.06.2012, for the reason that the details of the Cenvat Credit were not appearing in the ST-3 Return for the period October, 2015 to December 2015 and no concrete evidence was submitted with the claim that cenvat credit is available to them – Held that:- What is to be determined to ascertain the eligibility of refund, is the balance of credit lying with the assessee, as on the last date of quarter as well as on the date of filing of the refund. To check the balance lying with the assessee the relevant documents are the accounts of the assessee in the form of balance sheets, bills & invoices. Though whatever balance is being shown in the accounts of the assessee has to find mention in the ST-3 but due to the said documents being the basis of ST-3 as far as the amo
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– The mistake in ST-3 return was a rectifiable mistake – This Tribunal in the case of Serco Global Services Pvt. Ltd. vs. Commissioner of Central Excise, Delhi-III [2015 (6) TMI 270 – CESTAT NEW DELHI] 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 cenvat credit account and not on the basis of closing balance of cenvat credit shown in ST-3 return.
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The findings of Commissioner (Appeals) are held to lack the appreciation of all the documents as were relied upon by the appellant and based whereupon revision of ST-3 return inadvertently showing balance as nil, was proposed – appeal allowed – decided in favor of appellant. – Service Tax Appeal No.ST/51520/2018-ST [SM] – FINAL ORDER NO. 50067/2019 – Dated:- 14-1-2019 – MRS. RACHNA GUPTA, MEMBER (JUDICIAL) Present for the Appellant: Mr. Manish Saharan, Advocates Present for the Respondent: Mr. P.R.
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al of rejection was confirmed by the Order in Original No.06 dated 13.09.2016 and appeal thereof was rejected. Being aggrieved, the appellant is before this Tribunal. 3. I have heard Mr. Manish Saharan, ld. Advocate for the appellant and Mr. P. Gupta, ld. D.R. for the Department. 4. It is submitted on behalf of the appellant that the only ground of rejection of the claim, as is apparent from order in appeal is the alleged non-fulfilment of condition (g) of the Notification No.27/2012 dated 18.06.2012 which requires that the amount of refund claim shall not be more than the amount lying in balance 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 i
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d. 5. Ld. D.R. while rebutting these arguments has submitted that only document to check the balance available with the assessee at the end of quarter is the ST-3 return filed by the assessee. Since the assessee /appellant herein admittedly had filed the ST-3 return showing Nil balance, the Commissioner (Appeals) has rightly formed an opinion about non-fulfillment of condition (g) of Notification No.27/2012. It is submitted that though the appellant herein requested to the Range Superintendent about filing a revised ST-3 return but as per the statutory provision, the return can be modified 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 admitt
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ocuments are the accounts of the assessee in the form of balance sheets, bills & invoices. Though whatever balance is being shown in the accounts of the assessee has to find mention in the ST-3 but due to the said documents being the basis of ST-3 as far as the amounts shown therein as balance is concerned, I am of the opinion that ST-3 cannot be the only reliable record to verify the balance cenvat credit at the end of the quarter, as is held by the adjudicating authority below. 8. It is apparent from the record that the appellant herein, after it came to his notice that ST-3 return for 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. Acco
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verpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in Judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence, processual, as much as substantive. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the court in which the case is pending, and if, by an Act of Parliament the mode 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 In
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ainly on the ground of it being proposed beyond the stipulated period. So has been done by Commissioner (Appeals) while endorsing this finding. 11. Coming back to the issue of the ST-3 return as the sole document to verify the balance, I opine that in view of above discussion about Rule 7 B, it becomes clear that mistake in ST-3 return was a rectifiable mistake. Tribunal, Bangalore in Ceolric Services vs. CST, Bangalore reported in 2011 (23) STR 369 has held that the ST-3 returns are rectifiable and revised return should not have been discarded as nonest. The Tribunal further held 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-depos
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