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Judgment
Rejection of refund claims of the Appellant, an 100% EOU, filed for the period between April 2013 and December 2014 amounting to Rs.13,53,058/-, under Rule 6 A of the Service Tax Rules, 1994 on the ground of non-compliance of para 2 (h) of the Notification No. 27/2012 C.E. (N.T.) dated 18.06.2012 is assailed by the appellant in this appeal.
Learned Counsel for the appellant Mr Sandip Batwal, with reference to the decision of the Hon'ble Supreme Court in the case of CCE, New Delhi Vs Had Chand Shri Gopal & Others reported in 2010 (260) ELT 3 (SC) and order of this Tribunal made on 6th May, 2019 in the case of Scintel Technologies Private Limited Vs Commissioner of GST & CCE (Chennai Outer) in ST Case No. 40235/2019, submitted that if appellant has debited the claim amount in his account, it would be sufficient compliance of condition 2 (h) of Notification No. 27/2012 since the doctrine of substantial compliance is equitable in nature designed to avoid hardship of the assessee.
In response, learned AR for the Respondent Department Shri Onil Shivadikar, in citing judicial decision reported in 2018-TIOL302-SC-CUS-CB in the case of Commissioner of Customs (Import) Mumbai Vs Dilip Kumar and Company and Ors., submitted that it is not for an exemption notification to provide benefit necessarily to the assessee and therefore when the appellant had not debited Cenvat credit ledger in compliance to Rule 2 (h) it is not entitled to derive the benefits by refund of unutilized Cenvat credit for which he sought for no interference in the order passed by the Commissioner (Appeals).
I have heard the submissions from both the sides and perused the case records.
The stand taken by the appellant is that though it had not debited the Cenvat credit ledger which was not maintained by it, it had debited the same from its service tax ledger under the heading service tax receivable. However, going by the case record it is demonstratively established by the ld DR that an e-mail claiming such debit was sent to the adjudicating authority just two days prior to passing of the Orider-in-Original on dated 04.12.2015,which was not placed on record and learned Commissioner (Appeals) has clearly placed in his order at para 9 that he found no debit entry made in any of the ST-3 returns. More importantly, on perusal of ST-3 return of 25.04.2014 also in page No. 41-42 of the Appeal Memo, utilization of Cenvat credits for the period were shown as "Zero" in all its refund columns. In response to the submissions of Learned Authorised Representative, it has also been conceded by the learned Counsel for the appellant that till the date of argument such debit was not made from the Cenvat credit ledger as not maintained by them. It is also found at para-6 of the Order-in-Appeal that appellant had submitted before the learned Commissioner that they would reverse Cenvat credit upon completion of adjudication proceedings and would not utilize Cenvat credit against any of its liabilities till its completion. This being the factual position, it can be said thar the appellant has tried to tune the legal procedure to the point of no return in not preferring to make the necessary debit even on a future day thought Notification No. 27/2012 had made it obligatory to debit the same while filing refund application. This being so, appellant is not entitled to get the refund as claimed by it for non compliance of the procedure. Hence the order
The Order
The appeal is dismissed and order passed by the Commissioner (Appeals) in Order No. NA/GST-A-III/MUM/31/18-19 dated 23.04.2018 is hereby confirmed.
(Order pronounced in the open court on 23.03.2021)