TaxTMI 
TaxTMI 
2021 (6) TMI 510
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.... case are that the appellant is registered under the Service Tax Registration under the category of Information Technology Software Services. The appellant was unable to utilize CENVAT credit and therefore the appellant filed a refund claim on 27.02.2013 for Rs. 43,91,346/- under Notification No.05/2006-CE read with Rule 5 of CCR 2004 for the period February 2012 to March 2012. The Department issued a SCN proposing to reject the refund claim, the appellant filed detailed reply to the SCN and after following the due process, the original authority sanctioned a partial refund of Rs. 11,92,412/- and rejected the refund of Rs. 31,98,934/- on the ground that the refund rejected was pertaining to the period prior to 27.02.2012 as the credit did n....
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....passed beyond the scope of the SCN then the same is not sustainable in view of the following decisions: * Saci Allied Products Vs CCE, 2008 (183) ELT 225 (SC). * CCE Vs Suresh Synthetics, 2007 (216) ELT 662 (SC). * CCE Vs Gas Authority of India, 2008 (232) ELT 7 (SC). * CCE Vs Toyo Engineering India Ltd., 2006 (201) ELT 513 (SC). * CCE Vs Champdany Industries, 2009 (241) ELT 481 (SC). * GTC Industries Ltd. Vs CCE, 1997 (94) ELT 9 (SC). * CCE Vs Brindavan Beverages, 2007 (213) ELT 487 (SC). 4.1. He further submitted that Order-in-Original was passed on 31.08.2017 and appellant filed appeal before the Commissioner and on the date of filing the appeal before the Commissioner, the appellant was uncertain about the outcome of the ....
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.... 9 referred to Notification No.27/2012 and observed that the appellant should have debited the refund claim amount. To counter this, the learned Consultant submitted that the claim of refund was for the period pertaining to February 2012 to March 2012 and the claim was made under Notification No.05/2006, in the said Notification, requirement for debiting the refund claim amount did not exist. The impugned order has wrongly treated the claim to be filed under Notification No.27/2012 instead of Notification No.05/2006. Hence the basis of the conclusion of the learned Commissioner in Para 9 is not relevant. He further submitted that the Commissioner (Appeals) has relied upon the decisions which are pertaining to interpretation of the exemption....
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....t which was availed in TRAN-1 citing the proviso to Section 142(3) of CGST 2017. He further submitted that the present issue has arisen only on account of the delay of more than 4 years in adjudicating the refund claim by the original authority, in case the matter was adjudicated on filing the reply, the matter would have attain finality and the ground of rejection of refund vide Order-in-Original dated 22.10.2018 and Order-in-Appeal dated 16.09.2019 would not have arisen. Learned Consultant has also taken an alternative plea and requested the Tribunal to allow the credit under GST as TRAN-1 credit as the original authority vide Order-in-Original No.20/2018 rejected the refund on the ground that the credit was transferred to TRAN-1. The app....
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....e original authority rejected the refund going beyond the SCN itself which is not sustainable in law in view of the various decisions relied upon by the appellant cited supra. Further, I find that the Larger Bench decision of the Tribunal in the case of Span Infotech (supra) has held that the period of one year is to be counted from the last day of quarter in which receipt of foreign exchange was received. I also find that in the denovo demand order, the original authority has not decided the refund claim as per the directions of the Commissioner (Appeals) who has rejected the refund only on the ground that the appellant did not debit the CENVAT credit account by following the condition 2(h) of Notification No.27/2012 dated 18.06.2012. Seco....