TaxTMI 
TaxTMI 
2018 (6) TMI 814
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....y on the ground that they had not debited the CENVAT credit amount from their books of accounts at the time of making the claim as required. It is further alleged that the refund claim amount was not reflected in the Service Tax returns filed by the appellant during the relevant period and the general ledger of the assesse to show that the duty has been debited cannot be considered as evidence, it being a private record. 4. Aggrieved, the appellant appealed to the Commissioner (Appeals) who dismissed the appeals and upheld the orders of the Original Authority. The present appeal is against the orders of the Commissioner (Appeals). 5. Learned Chartered Accountant appeared on behalf of the appellant and explained the sequence of events during the hearing as follows: - Sl. No. Particulars 1. Appeal No. 30212/2018 30213/2018 30214/2018 2. Refund for the Quarter April - June 2015 July - Sept 2015 Jan - March 2015 3. Date of application 30/03/2016 29/06/2016 25/01/2016 4. Refund Amount 7,32,287/- 10,32,532/- 5,39,822/- ....
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....hich they should not be deprived of their substantive benefit of refund. It is his further submission the appellant does not stand to gain anything by not debiting as they always had surplus credit in their books of accounts because of their exports. Considering these facts, the Learned Commissioner (Appeals) should have taken a more holistic view of the situation and allowed them to refund which he did not. His submission is that the Tribunal should take a larger view of the situation and appreciate that the appellant has not gained anything by these technical mistakes and should not be deny the substantive benefit of refund. He further submits that even after this refund claim was rejected by the Original Authority and the First Appellate Authority they have not taken back the credit CENVAT in their accounts. He relied upon the following judgments and orders. i) Commissioner of Service Tax, Delhi Vs. Covergys India (P.) Ltd., [2009 (21) STT 67 (NEW DELHI -CESTAT)] ii) Kothari Infotech Ltd., Vs. Commissioner of Central Excise, Surat [2013 (38)taxmann.com 298 (Ahmedabad - CESTAT)] iii) Manubhai & Co. Vs. Commissioner of Service Tax, Ahmedabad [2011 (21) S....
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.... the legislation. However, neither the officers enforcing the law nor the quasi-judicial authorities including the Tribunals (which are creations of the law) have the power to modify, amend, insert, delete, stretch or restrict the scope of the Act, Rules, Regulations or the Notifications. Their role is confined to interpreting the laws and applying them to the case in hand. The Hon'ble Apex Court in the case of UOI vs Kirloskar Pneumatics Company [1996 (84) ELT 401 (SC)] not only clarified this position but further held that even when exercising the powers under Article 226/227, the High Courts cannot direct the officers to act contrary to the law. Para 10 of this judgment reads as follows: "10. According to these sub-sections, a claim for refund or an order of refund can be made only in accordance with the provisions of Section 27 which inter alia includes the period of limitation mentioned therein. Mr. Hidayatullah submitted that the period of limitation prescribed by Section 27 does not apply either to a suit filed by the importer or to a writ petition filed by him and that in such cases the period of limitation would be three years. Learned counsel refers to certain de....
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....ce provider who provides an output service which is exported without payment of service tax, shall be allowed refund of CENVAT credit as determined by the following formula subject to procedure, safeguards, conditions and limitations, as may be specified by the Board by notification in the Official Gazette: Refund amount = (Export turnover of goods+ Export turnover of services) x Net CENVAT credit/Total turnover Where,- (A) "Refund amount" means the maximum refund that is admissible; (B) "Net CENVAT credit" means total CENVAT credit availed on inputs and input services by the manufacturer or the output service provider reduced by the amount reversed in terms of sub-rule (5C) of rule 3, during the relevant period; (C) "Export turnover of goods" means the value of final products and intermediate products cleared during the relevant period and exported without payment of Central Excise duty under bond or letter of undertaking; (D) "Export turnover of services" means the value of the export service calculated in the following manner, namely:- Export turnover of services = payments received during the relevant period for exp....
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....on 3, Sub-section (i) vide number G.S.R 156(E), dated the 14th March, 2006, the Central Board of Excise and Customs hereby directs that refund of CENVAT credit shall be allowed subject to the procedure, safeguards, conditions and limitations as specified below, namely:-. 2.0 Safeguards, conditions and limitations.- Refund of CENVAT Credit under rule 5 of the said rules, shall be subjected to the following safeguards, conditions and limitations, namely:- (a) the manufacturer or provider of output service shall submit not more than one claim of refund under this rule for every quarter: provided that a person exporting goods and service simultaneously, may submit two refund claims one in respect of goods exported and other in respect of the export of services every quarter. (b) in this notification quarter means a period of three consecutive months with the first quarter beginning from 1st April of every year, second quarter from 1st July, third quarter from 1st October and fourth quarter from 1st January of every year. (c) the value of goods cleared for export during the quarter shall be the sum total of all the goods cleared by the export....
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....irm; (iii) a person authorized by the Board of Directors in case of a limited company; (iv) in other cases, a person authorized to sign the refund application by the entity. (d) The applicant shall file the refund claim along with the copies of bank realization certificate in respect of the services exported. (e) The refund claim shall be accompanied by a certificate in Annexure A-I, duly signed by the auditor (statutory or any other) certifying the correctness of refund claimed in respect of export of services. (f) The Assistant Commissioner or Deputy Commissioner to whom the application for refund is made may call for any document in case he has reason to believe that information provided in the refund claim is incorrect or insufficient and further enquiry needs to be caused before the sanction of refund claim. (g) At the time of sanctioning the refund claim the Assistant Commissioner or Deputy Commissioner shall satisfy himself or herself in respect of the correctness of the claim and the fact that goods cleared for export or services provided have actually been exported and allow the claim of exporter of goods or services in....