TaxTMI 
TaxTMI 
TaxTMI 
2015 (11) TMI 1338
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....s) who after going through the facts of the case allowed the refund claim (though in part). Revenue is in appeal against the said decision of the Commissioner (Appeals). The main ground of appeal is that the appellant is not satisfying the conditions prescribed under clause 2(h) of Notification 27/12-CE(NT). Revenue's contention is that the said condition is mandatory condition and in view of the Hon'ble Supreme Court decision in the case of Mangalore Chemicals & Fertilisers Ltd. 1991 (55) ELT 437 (SC) the claim is required to be rejected. 2. The ld. AR reiterated the grounds of appeal. None appeared on behalf of the respondent. 3. We have gone through the impugned order. The relevant portion of the impugned order is reproduced as und....
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....ce lying in CENVAT account at the end of quarter for which refund claim was made or the balance lying at the time of filing the refund. 14. .. However, the undisputed factual position is also that the Appellant had failed to reflect the said debit of refund claim amount in their ER-2 Return for July 2013, even though it is established from records that they had debited the said amount in their CENVAT credit account on 01.07.2013, i.e. on the day of filing the refund claim. In any case, the Appellant had debited the same before the issuance of Show Cause Notice on 25-09-2013 and much before the issuance of the Order-in-Original dated 06-02-2014. I have also noticed that this requirement of clause (h) of Para 2.0 of Notification No. 27/20....
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....nnot be utilized by the exporter when his refund claim is under process. In their words, the Notification stipulates that exporter-assessee shall not utilize that amount for any purpose till his refund claim is under process. The sub-clause (i) of Para 2.0 of Notification No. 27/2012-CE(N.T.) reads as under: "(i) In case the amount of refund sanctioned is less than the amount of refund claimed, then the claimant may take back, the credit of the difference between the amount claimed and amount sanctioned." This provision, which permits suo moto taking of CENVAT credit of the portion whose refund has not been sanctioned, makes it absolutely clear that the debiting of the amount, of which refund is claimed, at the time of filing the refun....
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....is a judicial invention, equitable in nature, designed to avoid hardship in cases where a party does all that can reasonably expected of it, but failed or faulted in some minor or inconsequent aspects which cannot be described as the "essence" or the "substance" of the requirements. Like the concept of "reasonableness", the acceptance or otherwise of a plea of "substantial compliance" depends upon the facts and circumstances of each case and the purpose and object to be achieved and the context of the prerequisites which are essential to achieve the object and purpose of the rule or the regulation. Such a defence cannot be pleaded if a clear statutory prerequisite which effectuates the object and the purpose of the statute has not been met.....
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.... or incorrectly written that an earnest effort at compliance should be accepted. The test for determining the applicability of the substantial compliance doctrine has been the subject of a myriad of cases and quite often, the critical question to be examined is whether the requirements relate to the "substance" or "essence" of the statute, if so, strict adherence to those requirements is a precondition to give effect to that doctrine. On the other hand, if the requirements are procedural or directory in that they are not of the "essence" of the thing to be done but are given with a view to the orderly conduct of business, they may be fulfilled by substantial, if not strict compliance. In other words, a mere attempted compliance may not be s....