2019 (2) TMI 948 – CESTAT NEW DELHI – TMI – Refund of service tax – export of services – denial on the ground that the details of the Cenvat Credit were not appearing in the ST-3 Return for the period January, 2016 to March, 2016 and no concrete evidence was submitted with the claim that cenvat credit is available to them – N/N. 27/2012 dated 18.06.2012 – Held that:- The bare perusal of this condition makes it clear 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 amounts shown therein as balance is concerned, ST-3 cannot
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(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-757-17-18 dated 26.03.2018 passed by the Commissioner (Appeals), CGST & Central Excise, Indore. 2. The facts relevant for the adjudication are that the appellant who provides an output service, which was exported without payment of service tax. Since they were entitled for availing cenvat credit that the appellant filed a refund claim for ₹ 7,36,702/- vide their application dated 18.06.2012 However, vide show cause notice No.2611 dated 12.05.2017 the rejection of the said refund claim was proposed 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 January, 2016 to March, 2016 an
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rities 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 ₹ 7,36,702/- 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. Counsel has relied upon the following case laws to impress upon that refund claim cannot be rejected on the basis of mistakes in ST-3 returns: 1. Broadcom India Research Pvt. Ltd. vs. CST, Bangalore reported in 2015 – TIOL-2870-CESTAT-Bang. 2. Serco Global Services Pvt. Ltd. reported in 2
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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 refund claim is being made or at the time of filing of the refund claim whichever is earlier. 7. The bare perusal of this condition makes it clear 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 quart
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tify 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 ₹ 7,36,702/- lying in the account for the impugned period. In such circumstances, Rule 7 B is merely procedural in nature. Hon ble Apex Court has clarified while creating a distinction that a mere procedural lapse is not sufficient to decline the substantive relief to the assessee
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rpretation 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, necessary to find out the intention of the legislature. The consequences which may follow and whether the same were intended by the legislature have also to be kept in view. 10. Seen from this angle also, I opine that Range Superintendent had
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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 cenvat credit account and not on the basis of closing balance of cenvat credit shown in ST-3 return. In another case titled as Jagdamba Polymers Ltd. vs. CCE Ahmedabad reported in 2010 (253) ELT 626 [2010-TIOL-522-CESTAT-AHM], it was held that omission to re
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