TaxTMI 
TaxTMI 
2026 (8) TMI 650
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....ut services without payment of service tax. The adjudicating authority rejected the claim on the grounds that no CENVAT credit was available in the appellant's account for the relevant period, the refund arose from service tax paid after March 2011 under import of services, part of the claim related to unregistered premises, export documents were not produced, and the claim was barred by limitation. The Commissioner (Appeals) upheld the rejection; hence, the present appeal. 3. The Ld. Advocate Smt. Radhika Chandrasekar appeared for the appellant and Ld. Authorized Representative Smt. O.M. Reena appeared for the respondent. 3.1 The Ld. Counsel for the appellant submitted as follows:- 1. Impugned Orders Travel Beyond the Scope of the Show Cause Notice (SCN) (a) Settled Legal Position: The SCN is the foundation of the case. It is trite law that the Revenue cannot travel beyond the SCN to build a new case at the adjudication or appellate stage. The Appellant relies upon the following decisions wherein it has been held that Show Cause Notice is the basis and an Order in Original /Order in Appeal cannot travel beyond the Show Cause Notice: (i) Saci Allied Products Lt....
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....the Cenvat Credit Rules, 2004. (b) No Period-Rigid Correlation Required: There is no statutory requirement under Rule 5 of the CENVAT Credit Rules (CCR), 2004, or Notification No. 5/2006-CE, mandating that input credit must rigidly correspond to the specific quarter in which the exports were made. (c) Board Clarifications: CBEC Circular No. 120/01/2010-ST dated 19.01.2010 and D.O.F. No. 334/1/2010-TRU dated 26.02.2010 categorically clarify that refunds of accumulated CENVAT credit should not be linked mechanically or rigidly to credit taken during a particular period. (d) Judicial Precedents: (i) Samvardhana Motherson International Ltd. [2015 (11) TMI 466 (Tri.)] and M/s. Hritik Exim [2016 (12) TMI 20 (Tri.)]: Held that refund cannot be denied on the ground that input services do not strictly match the export period. (ii) MWH Resource Net India Pvt. Ltd. [2017 (1) TMI 499 (Tri.)]: Held that for 100% EOUs/exporters, input services of a previous quarter are validly attributable to a later quarter, and Notification no. 5/2006-CE does not expressly bar such attribution. 3. Eligibility of CENVAT Credit and Refund on Service Tax Paid Under RCM (a) Valid Availment: Se....
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..... C. The claim is also time-barred, as it related to April 2010-March 2011 but was filed only on 24.10.2011, beyond the one-year limit prescribed under Section 11B of the Central Excise Act, 1944. The Ld. A.R. prayed that the appeal may be rejected. Analysis 4. The submissions of both sides have been considered and the record perused. The issues for determination are: A) Whether the CENVAT credit on inputs or input services may be utilized for payment of duty of excise on any final product cleared for home consumption or for export on payment of duty or service tax on output service, and only where such utilization is not possible, the manufacturer or output service provider shall be entitled to a refund of the unutilized credit. B) Whether the refund claim was required to be filed quarterly under Notification No. 5/2006-CE (NT) dated 14.03.2006. C) Whether the impugned services qualify as input services used for providing the exported output services. D) Whether the claim is time-barred, as it related to April 2010-March 2011 but was filed only on 24.10.2011, beyond the one-year limit prescribed under Section 11B of the Central Excise Act, 1944. 5. At th....
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....terms is fifty percent or more of the total clearances of final products or output services, as the case may be, in the preceding quarter; or (b) the claim is filed by Export Oriented Unit, the claim for such refund may be submitted for each calendar month. 3. The manufacturer or provider of output service, as the case may be, submits an application in Form A annexed to this notification to the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, in whose jurisdiction, - (a) the factory from which the final products are exported is situated, along with the Shipping Bill or Bill of Export, duly certified by the officer of customs to the effect that goods have in fact been exported; or (b) the registered premises of the service provider from which output services are exported is situated, along with a copy of the invoice and a certificate from the bank certifying realization of export proceeds. 4. The refund is allowed only in those circumstances where a manufacturer or provider of output service is not in a position to utilize the input credit or input service credit allowed under rule....
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....duty or service tax, wherever such utilisation is permissible. Refund is available only as a residual relief, to the extent such credit remains unutilised for reasons of practical impossibility during the relevant period, and subject to the conditions, safeguards and limitations prescribed in the notification. The notification 5/2006-CE only regulates the manner of refund and does not enlarge the substantive entitlement. Accordingly, refund under Rule 5 is admissible only on demonstration that the accumulated eligible credit could not, having regard to the nature of clearances or output services in the relevant period, be practically utilised for payment of excise duty or service tax. Question (A) of para 4 above is answered accordingly. However, as the opportunity to pay excise duty or service tax has lapsed and is no longer available under the GST regime, the issue no longer survives. The claim can hence be examined for sanction if otherwise eligible. 7. As regards the question whether the refund claim was required to be filed quarterly under Notification No. 5/2006-CE (NT) dated 14.03.2006, we find that the issue has been clarified vide Circular No. 120/01/2010-ST dated 19.01....
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....ervice exported. As regards, the extent of nexus between the inputs/ input services and the export goods/ services, it must be borne in mind that the purpose is to refund the credit that has already been taken. There cannot be different yardsticks for establishing the nexus for taking of credit and for refund of credit. Even if different phrases are used under different rules of Cenvat credit rules, they have to be construed in a harmonious manner. To elaborate, the definition of input services for manufacturer of goods, as given in Rule 2(l)(ii) of Cenvat Credit Rules, 2004, includes within its ambit all services used "in or in relation to the manufacture of final products" and includes services used "directly or Indirectly''. Similarly Rule 2(l)(i) of Cenvat Credit Rules also gives wide scope to the input services for provider of output services by including in its ambit services "used for providing an output services". Similar is the case for inputs. 3.1.2 Therefore, the phrase, "used in" mentioned in Notification No.5/2006-C.E. (N.T.) to show the nexus also needs to be interpreted in a harmonious manner. The following test can be used to see whether sufficient ....
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.... It has, therefore, been decided that similar scheme should be followed for refund of Cenvat credit under Notification No.5/2006-C.E. (N.T.). The procedure prescribed herein should be followed in all cases including the pending claims with immediate effect." (emphasis added) Consequently, no one-to-one correlation is required. Interpreting Rule 2(l)(i) liberally as per the Circular, the sufficiency of the nexus test is met if the absence of the input service adversely affects the quality and efficiency of the output service. 9. As per Circular No. 120/01/2010-ST, the purpose of Rule 5 and Notification No. 5/2006-C.E. (N.T.) is to zero-rate exports and resolve cash-flow issues by refunding accumulated credit, including delayed reverse charge payments. Acting as a trade facilitator, which the department prides itself to be, it should eschew technical objections (e.x., unregistered premises [See: Commissioner Of Service Tax, Chennai III v. Scio Inspire Consulting Services (India) Pvt. Ltd. - 2017 (3) GSTL 45 (Mad.); claim being filed with the wrong authority [See Commissioner of Customs (Air) Vs M/s. ECI Telecom India Private Limited - FINAL ORDER NO. 40857 / 2023, Date: 04.1....
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.... disposal of the appeal, issue at C does not arise for consideration at the stage of adjudication of a refund claim and is therefore unnecessary, while in so far as issue at B and D are concerned, I am in agreement with the analysis in paragraphs 7 and 10 respectively, the reasoning therein commends itself to me, and with which I fully concur. I would rest my decision on the facts, submissions and narration in paragraphs 1 to 3.2, and the analysis in paragraphs 7 and 10 as aforementioned, as well as the further reasons given below as the basis of my decision. 14. The issue as framed at A is only the mandate of Rule 5 of the Cenvat Credit Rules, 2004 as can be seen from the said Rule reproduced in the order. When the statutory provision is plain and unambiguous, no separate formulation of the issue is called for, especially when neither side had addressed us on any apprehension of ambiguity as regards the stipulations therein, or urged contentions seeking clarity, raising it as one of the contentious issues in the appeal. Moreover, it is well settled by a catena of decisions that refund of accumulated cenvat credit under Rule 5 of the Cenvat Credit Rules, when they cannot be adju....
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.... STR 198 (Tri-Del), as early as in May 2009, after examining Rule 5 of the Cenvat Credit Rules, 2004 has gone on to hold that it is clear that there cannot be two different yardsticks, one for permitting credit and the other for eligibility for granting rebate. Whatever credit has been permitted to be taken, the same are permitted to be utilized and when the same is not possible there is provision for grant of refund or as rebate. With out questioning the credit taken, the eligibility to rebate cannot be questioned. The said decision was affirmed by the Hon'ble Punjab & Haryana High Court in CST v. Convergys India Pvt Ltd, 2010 (20) STR 166 (P & H). The said position has been consistently reiterated in various Final Orders of this Tribunal over a period of time as can be seen from the decisions in Morgan Stanley Advantage Services Ltd v. CST, Mumbai-II, 2015(37) STR 639 (Tri-Mumbai), ADP Pvt Ltd v CST, Hyderabad-II Commissionerate, 2020-TIOL-11-CESTAT-HYD, M/s.BNP Paribas India Solutions Pvt Ltd v. CST-II, Mumbai, 2022-TIOL-785-CESTAT-MUM, Capgemini Technology Services India Ltd v., CCE & CST, Bangalore, 2022-TIOL-162-CESTAT BANG and by the Hon'ble High Court of Telangana, in Qualc....
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....n this regard is apposite and suffice to note that the Hon'ble Apex Court has in the decision in CCE, Bhubaneswar v. Champdany Industries Ltd, 2009 (241) ELT 481 (SC), held as under: "50. Apart from that, the point on Rule 3 which has been argued by the learned counsel for the Revenue was not part of its case in the show-cause notice. It is well settled that unless the foundation of the case, is made out in the show-cause notice, Revenue cannot in Court argue a case not made out in its show-cause notice. {See: Commissioner of Customs, Mumbai v. Toyo Engineering India Limited - (2006) 7 SCC 592, para 16}. 51. Similar view was expressed by this Court in the case of Commissioner of Central Excise, Nagpur v. Ballarpur Industries Ltd. - (2007) 8 SCC 89. In paragraph 27 of the said report, learned Judges made it clear that if there is no invocation of the concerned rules in the show-cause notice, it would not be open to the Commissioner to invoke the said Rule." (emphasis supplied) I am of the view that the impugned order is, even otherwise, liable to be set aside on this ground alone. 18. Admittedly, the SCN itself states that the appellant had submitted docum....
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.... output service does not arise. 21. It is also to be noted that the object of the Export-Import Policy of the Government of India is to promote exports of goods and services and not to export taxes, as has also been observed by the Hon'ble High Court of Bombay in Repro India Ltd v. UOI, 2009 (235) ELT 614 (Bom). Therefore, the limited remit of the sanctioning authority, as indicated in the applicable notification is only to ascertain the amount of credit that is to be refunded in accordance with the formula prescribed. The Board too has repeatedly reiterated that refund claim should be expeditiously settled through various circulars and has in the Circular No.120/01/2010-ST dated 19-01-2010 stated that in case of service providers exporting 100% of their services, such exporters may be asked to file a declaration to the effect that they are exporting 100% of their services, and, only if it is noticed subsequently that the exporter had provided services domestically, the proportional refund to such extent can be demanded from him. Admittedly, the Adjudicating Authority himself has categorically rendered a finding in this regard in so far as the Appellant is concerned that the app....
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....herein after noticing the aforesaid decision, it has further been stated as under: 18. While dealing with the said facet, the Court also referred to Circular, dated 1-10-2002 issued by the Central Board of Excise and Customs, New Delhi whereby a direction was issued to fix responsibility for not disposing of the refund/rebate claims within three months from the date of receipt of the application. Appreciating the import of the said circular, the Court opined as follows: - "12. Thus, ever since Section 11BB was inserted in the Act with effect from 26th May 1995, the department has maintained a consistent stand about its interpretation. Explaining the intent, import and the manner in which it is to be implemented, the Circulars clearly state that the relevant date in this regard is the expiry of three months from the date of receipt of the application under Section 11B (1) of the Act." The ultimate conclusion was recorded thus: - "19. In view of the above analysis, our answer to the question formulated in para (1) supra is that the liability of the revenue to pay interest under Section 11BB of the Act commences from the date of expiry of three mont....
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....ng the appellant an opportunity to file the declaration, if not filed already. Following the coordinate bench decision cited supra, the appellant in this case too is permitted to file the requisite declaration, if not filed already. 26. In view of the discussions and reasons stated above, the impugned order is accordingly set aside and the appeal is allowed, with directions to sanction refund with interest and any other consequential relief in law, if any. Sd/- (AJAYAN T.V.) Member (Judicial) "Judicial restraint and discipline are as necessary to the orderly administration of justice as they are to the effectiveness of the army." - Justice Felix Frankfurter 27. I have had the benefit of reading the separate Order authored by my ld. Brother, Shri Ajayan T.V., Member (Judicial). I did so with a measure of anguish. While an honest difference of opinion is an accepted and indeed valuable feature of the judicial process, contributing to the evolution and clarification of the law, its true worth is best preserved when it is expressed in a manner consistent with the well-established traditions of judicial propriety, decorum and restraint. The strength of a....
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....tion of an impartial adjudicator and, consistent with settled principles of judicial propriety, should ordinarily refrain from identifying or formulating issues that are outside the dispute and thereafter examining the correctness of the order passed by the learned Brother Member on such issues. The exercise of appellate jurisdiction is, therefore, best confined to the issues that arise from the pleadings, the record, and the submissions advanced by the parties, rather than to grounds culled out from the order under consideration. The established framework for dispute resolution adequately safeguards the rights of the parties by enabling any party aggrieved by any part of an order to avail itself of the appropriate appellate remedy in accordance with law. 31. It is necessary to refer to the earlier Order cited above, as it provides valuable insight into the thought process that underlies the observations made in the present Order. On the earlier occasion, considerations of judicial propriety, institutional decorum and the restraint expected of a judicial forum dissuaded me from responding to the observations contained therein by way of a detailed discussion, in the hope that the....
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....eeds to be zealously guarded against. What cannot be unseen is that the Taxpayer does not approach the Tribunal in a vacuum. Rather, the appeal is frequently a compelled inevitable response directly to an overreaching or arbitrary application of executive authority, probably often by the over-zealous pursuit of fiscal targets. Thus, any exhortation that the cause of Revenue deserves equal treatment at the hands of the Appellate Authorities, to my mind, is to ignore the inherent contradiction of "Neutral" Revenue interest, given the fact that the litigant before the Tribunal is more often than not, specifically seeking sanctuary from the excessive zeal of the tax authorities. The percentage of the appeals allowed in favour of the litigant assessee in extra departmental higher judicial forums, itself ought to be a stark reminder of this inexorable factual state of the situation. Therefore, to my mind, any implied assertion that a tax Tribunal must act as a steward of the public exchequer has an inherent fallacy of assuming Fiscal Guardianship that has never been statutorily stipulated as an onus of the Tribunal. To say so, in my view, would be a doctrinal overreach that threatens the....
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.... interests of the assessee before adjudicatory and appellate forums. The public exchequer represents public funds held by the State in trust for the welfare of the community and, therefore, occupies an important place within the broader domain of public interest. It also appears to have been overlooked that the Revenue is an equal and necessary litigating party in every appeal before the Tribunal. In that context, the observations castigating the Revenue Department, as frequently resorting to an overreaching or arbitrary exercise of executive authority, purportedly driven by an overzealous pursuit of fiscal targets, and suggesting that litigants before the Tribunal are, more often than not, seeking sanctuary from the excessive zeal of the tax authorities, may reasonably give rise to an impression of a preconceived view regarding one of the parties appearing before the Tribunal. While the observations may have been informed by the learned Member's prior experience in the department, such broad and generalized characterisations have the potential to detract from the appearance of impartiality that is fundamental to the judicial function. The Hon'ble Supreme Court has, on more....
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....aintains and enhances the confidence of the public, the legal profession and litigants in the impartiality of the judge and of the judiciary. 2.3 A judge shall, so far as is reasonable, so conduct himself or herself as to minimise the occasions on which it will be necessary for the judge to be disqualified from hearing or deciding cases. 2.4 A judge shall not knowingly, while a proceeding is before, or could come before, the judge, make any comment that might reasonably be expected to affect the outcome of such proceeding or impair the manifest fairness of the process. Nor shall the judge make any comment in public or otherwise that might affect the fair trial of any person or issue. 2.5 A judge shall disqualify himself or herself from participating in any proceedings in which the judge is unable to decide the matter impartially or in which it may appear to a reasonable observer that the judge is unable to decide the matter impartially. Such proceedings include, but are not limited to, instances where 2.5.1 the judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings; ....
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....rt on that conduct. It has also been recognised that judicial pronouncements must be judicial in nature, and should not normally depart from sobriety, moderation and reserve." (emphasis added) 36.2 In A. M. Mathur Vs Pramod Kumar Gupta, AIR 1990 SC 1737 though in a different context immense emphasis was laid on judicial restraint and discipline, it is appropriate to reproduce a passage from the said decision: "(2) Some observations of Felix Frankfurter, J., on the Nature of Judicial Process of Supreme Court Litigation 98 Proceedings AM Phil Society 233 (1954). It is true that the judges are flesh and blood mortals with individual personalities and with normal human traits. Still what remains essential in judging, Justice Felix Frankfurter said: "First and foremost, humility and an understanding of the range of the problems and (one's) own inadequacy in dealing with them, disinterestedness ..... and allegiance to nothing except the effort to find (that) pass through precedent, through policy, through history, through (one's) own gifts of insights to the best judgment that a poor fallible creature can arrive at in that most difficult of all ta....
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....hat the adverse observations were unwarranted. 36.4 In Lanka Venkateswarlu (D) By Lrs Vs State Of A.P. & Ors [AIR 2011 SC 1199 / 2011 (4) SCC 363], the Apex Court stated that, "the use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases". 37. Paragraph 57 of the Order of my ld. Brother, Shri Ajayan T.V., Member (Judicial), introduces rhetorical concepts including the "Tribunal's loyalty", "the true mandate of the Tribunal", and characterises the Tribunal as a "sentinel on the qui vive". With the utmost respect, I am unable to find support for these formulations in any settled principle of law or binding precedent of the Constitutional Courts. 37.1 In my respectful view, the reasoning in the said paragraph appears to draw an unwarranted distinction between due regard for the integrity of the public exchequer and the fair administration of justice, whereas both are complementary facets of the rule of law. Such an approach does not accord with the constitutional or legal position. While the integrity of public exchequer can never be the sole consideration in the dispute resolution proc....
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....;ble Supreme Court in L. Chandra Kumar Vs Union Of India [1997 (92) E.L.T. 318 (S.C.)], the Tribunals constituted under Articles 323-A and 323-B may perform a supplemental adjudicatory role, including examining the constitutional validity of statutory provisions and rules. They shall however not entertain any question regarding the vires of their parent statutes. The Tribunals appellate and adjudicatory function is thus exercised within the statutory framework and is governed by the binding precedents of the Hon'ble Supreme Court and the jurisdictional High Courts. 37.3 The Tribunal's role is, therefore, more accurately understood as that of an independent and impartial appellate body entrusted with administering the statutory scheme in accordance with law, ensuring that neither the interests of the Revenue nor those of the assessee prevail except as warranted by the applicable statutory provisions and binding legal principles. In this regard, both are to be treated on an equal footing. If the intended emphasis of the Order of my ld. Brother was to underscore the duty of an adjudicator as stated in his order, to remain vigilant against personal perceptions or predisposit....
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..../ (1985) 19 ELT 22] the dispute was that the assessee claimed the benefit of a Central Excise exemption and challenged the levy before the Hon'ble Calcutta High Court. The High Court granted interim relief that allowed the company to obtain substantial financial benefit upon furnishing bank guarantees. The Revenue authorities appealed to the Supreme Court, arguing that such interim orders unduly affected the collection of public revenue. A three Judge Bench of the Hon'ble Supreme Court perhaps persuaded by the 'balance sheet of the State', intervened and held: "10. Even assuming that the company had established a prima facie case, about which we do not express any opinion, we do not think that it was sufficient justification for granting the interim orders as was done by High Court. There was no question of any balance of convenience being in favour of the respondent-Company. The balance of convenience was certainly in favour of the Government of India. Governments are not run on mere Bank Guarantees. We notice that very often some courts act as if furnishing a Bank Guarantee would meet the ends of justice. No governmental business or for that matter no business of any kin....
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....t he has not passed on the burden of the duty to others, his claim for refund may not be refused. In other words, if he is not able to allege and establish that he has not passed on the burden to others, his claim for refund will be rejected whether such a claim is made in a suit or a writ petition. It is a case of balancing public interest vis-a-vis private interest. Where the petitioner-plaintiff has not himself suffered any loss or prejudice (having passed on the burden of the duty to others), there is no justice or equity in refunding the tax (collected without the authority of law) to him merely because he paid it to the State. It would be a windfall to him. As against it, by refusing refund, the monies would continue to be with the State and available for public purposes. The money really belongs to a third party - neither to the petitioner/plaintiff nor to the State - and to such third party it must go. But where it cannot be so done, it is better that it is retained by the State. By any standard of reasonableness, it is difficult to prefer the petitioner-plaintiff over the State. Taxes are necessary for running the State and for various public purposes and this is the view ....
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...., orders by way of stay or injunction are also made. Whatever may have been the practices in the past, a time has come where the courts should keep the larger public interest in mind while exercising their power or grant in stay/injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interests of justice and the public purposes, the interests of justice and the public interest coalesce. They are very often one and the same. Even in civil suit, granting of injunction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The courts have to weigh the public interest vis-a-vis the private interest while exercising the power under Article 226 - indeed any of their discretionary powers." (emphasis added) 38.6 In Sales Tax Officer Vs M/s. Shree Durga Oil Mills [AIR 1998 SC 591 / (1998) 1 SCC 572], the Hon'ble Supreme Court, while reversing the judgment of the High Court, upheld the withdrawal of a sales tax exemption granted under the Orissa Sales Tax Act, 19....
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....ka Housing Board & Ors., [2025 INSC 1104]. However, the fundamental principle that the State, like any other litigant, is subject to the same law and that justice must be administered even-handedly remains well settled. 38.9 The judgments referred to above illustrate that the Hon'ble Supreme Court has, where the facts and the governing legal principles so warranted, accorded due weight to considerations of public interest alongside private rights in various walks of public life. In that context, by stating that the cause of Revenue deserves equal treatment at the hands of Appellate Authorities would, by itself, transform the Tribunal from an impartial appellate body into an advocate for the State, does not appear to be well-founded. 39. Against the backdrop of the approach adopted by my ld. Brother, Shri Ajayan T.V., Member (Judicial), in the earlier order referred to above, it appears that the present order also departs from the wellestablished conventions of judicial propriety, institutional comity and restraint. The discussion is directed substantially towards an evaluation of my order rather than an examination of the appeal memorandum and the connected records ....
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.... the litigant. Any grievance arising from an order can appropriately be pursued by the aggrieved party themselves before the appropriate forum. 43. The observation that the issue framed at (C) "cannot be looked into at the stage of determining a refund claim" and the subsequent discussion seeking to demonstrate that the very formulation of the issue was unnecessary, in my respectful view, travels beyond what was required for deciding the point of difference. It is not uncommon for Members of a Bench to identify or structure the questions arising for determination differently, while ultimately arriving at the same or different conclusions. Such variation is an accepted feature of the appellate process in a Bench of plural Members and, by itself, does not call for separate evaluation in a differing Order. 44. It is equally well settled that the mere fact that an issue is ultimately answered by reference to binding precedent does not render its formulation inappropriate. Issues that have been settled by binding decisions are often raised by the parties to the dispute either due to ignorance of the earlier Order or at times as a apart of their legal strategy. Hence a judicial ord....
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.... (Procedure) Rules, 1982 states as under: "Section 35C. Orders of Appellate Tribunal. - (1) The Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary." ***** RULE 10. - The appellant shall not, except by leave of the Tribunal, urge or be heard in support of any grounds not set forth in the memorandum of appeal, but the Tribunal, in deciding the appeal, shall not be confined to the grounds set forth in the memorandum of appeal or those taken by leave of the Tribunal under these rules: Provided that the Tribunal shall not rest its decision on any other grounds unless the party who may beaffected thereby has had a sufficient opportunity of being heard on that ground." The words "pass such orders thereon as it thinks fit" "after taking ....
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....is of such enquiry. Rule 12 of the Appellate Tribunal Rules, 1946 made under s. 5A(8) of the Act provides as follows:- "The appellant shall not, except by leave of the Tribunal, urge or be heard in support of any ground not set forth in the memorandum of appeal; but the Tribunal, in deciding the appeal, shall not be confined to the grounds set forth in the memorandum of appeal or taken by leave of the Tribunal under this rule: Provided that the Tribunal shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of being heard on that ground." Rule 27 states: "The respondent, though he may not have appealed, may support the order of the Appellate Assistant Commissioner on any of the grounds decided against him." Rule 28 is to the, following effect: "Where the Tribunal is of opinion that the case should be remanded, it may remand it to the Appellate Assistant Commissioner or the Income-tax Officer, with such directions as the Tribunal may think fit." in the present case, the subject-matter of the appeal before the ....
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.... the conditions and limitations upon which a claim for rebate can be granted. Among the conditions and limitations under Clause (2) of the Notification is the requirement that the excisable goods shall be exported within six months from the date on which they were cleared from the factory of manufacture or warehouse. The procedures are stipulated in Clause (3). Sub-clause (iv) provides for the sealing of goods intended for export, at the place of dispatch and the exporter shall present goods along with four copies of an application in Form ARE-I specified in the Annexure to the Notification to the Superintendent or Inspector of Central Excise having jurisdiction over the factory of production or manufacture or warehouse. Sub-clause (v) then stipulates that the Superintendent or Inspector shall verify the identity of goods mentioned in the application, the particulars of the duty paid or payable and if found in order, shall seal each package or the container and endorse each copy of the application in token of having carried out the examination. The original and duplicate copies of the application are returned to the exporter. The triplicate copy of the application is to be sent to ....
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....mere presentation of the ARE-1 form would constitute an application for rebate of Central Excise Duty, that would defeat the whole scheme that has been enunciated in Section 11B and Section 11BB. Before the application for rebate can be allowed, an exporter has to furnish various documents including a request on the letterhead of the exporter containing a claim for rebate, the ARE-1 numbers and dates, corresponding invoice numbers and dates, the original copy of the ARE-1, invoice issued under Rule 11, self-attested copy of shipping bill and self-attested copy of bill of lading together with a Disclaimer Certificate in case where a claimant is other than the exporter. These requirements have been spelt out in para 8.3 of the CBEC Excise Manual. The mere presentation of an ARE-1 form does not, therefore, constitute the filing of a valid application for rebate. An application for refund has to be filed, together with documentary material as required. We, therefore, do not accept the second submission which has been urged on behalf of the petitioner." The Hon'ble Court went by the procedural requirements in the CBEC Excise Manual while examining the claim. Hence it is clear t....
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....further cited the judgment in Rafiq Ahmad Vs State of Uttar Pradesh [(2011) 8 SCC 300], wherein the Supreme Court had held that the purpose of framing of charge is to put the accused to notice regarding the offence for which he is being tried. It was further held that non-framing of a charge or defects therein would not ipso facto vitiate the trial and that the question must always be examined in the facts of each case to determine whether prejudice or failure of justice has been occasioned. It also referred to the judgment in Soundarajan Vs State represented by the Inspector of Police, Vigilance Anti-Corruption, Dindigul [(2023) 16 SCC 141], wherein it was reiterated that omission to frame a proper charge or defects therein are not fatal unless it is shown that such omission has occasioned a failure of justice. Accordingly, where a principle evolved in the context of criminal procedure-designed to safeguard far more serious consequences-permits curability of procedural defects in the absence of prejudice, there is no reason why a more rigid standard should be insisted upon in tax proceedings. 49.2 The doctrine that prejudice, and not mere procedural irregularity, is....
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....proper exercise of appellate discretion is to settle the governing legal principles and remit the matter for fresh adjudication on the factual issues in the light of those principles and in terms of the remand. 50. My ld. Brother, Shri Ajayan T.V., Member (Judicial), in his order, has directed sanction of the refund together with interest and all consequential reliefs admissible in law. In support of this direction, reliance has principally been placed on the decisions of the Hon'ble Supreme Court in Ranbaxy Laboratories Ltd. (supra) and Hamdard (Waqf) Laboratories (supra) - and other judgments which followed the same - wherein it was held that the liability to pay interest on delayed refunds arises upon the expiry of three months from the date of receipt of the refund application and not from the date of the order sanctioning the refund. Other judgment that draw from the two judgments have also been mentioned. With the utmost respect, I am of the considered view that the aforesaid decisions may not govern the present case, having regard to its distinct factual and legal context. Before examining their applicability, it is necessary to advert to another equally well-settled ....
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.... party cannot be granted a relief which is not claimed. 31. Dealing with the same issue, this Court in Bharat Amratlal Kothari Vs. Dosukhan Samadkhan Sindhi & Ors., AIR 2010 SC 475 held: "Though the Court has very wide discretion in granting relief, the court, however, cannot, ignoring and keeping aside the norms and principles governing grant of relief, grant a relief not even prayed for by the petitioner." 32. In Fertilizer Corporation of India Ltd. & Anr. Vs. Sarat Chandra Rath & Ors., AIR 1996 SC 2744, this Court held that "the High Court ought not to have granted reliefs to the respondents which they had not even prayed for." 33. In view of the above, law on the issue can be summarised that the Court cannot grant a relief which has not been specifically prayed by the parties." (emphasis added) 53. I am of the respectful opinion that in the absence of a specific prayer for refund with interest, such relief cannot be granted. Besides, there is an additional reason, which is discussed below. The Hon'ble Jharkhand High Court in the case of Rugta Mines Ltd [2022 (67) G.S.T.L. 180 (Jhar.)] has held as follows: ....
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....or a levy which is unconstitutional, the decision of the nine judges Bench in Mafatlal Industries Limited v. Union of India held that the right of refund is not automatic. The burden of proof lies on the claimant to establish that it would not cause unjust enrichment;" 54. Hence the right to a tax refund is a statutory right, not a fundamental or constitutional right. It accrues only in accordance with the provisions of the statute and the prescribed procedure, there being no equity in taxation. The right crystalizes only when the statute permits refund as per law and by following the prescribed procedure. 55. The issue before the Hon'ble Supreme Court in Ranbaxy Laboratories Ltd. (supra) pertained to certain claims for rebate of duty, between April and May 2003. The liability of the revenue to pay interest was considered under Section 11BB of the Central Excise Act, 1944. The Hon'ble Court held that the liability of the Revenue to pay interest under Section 11BB of the Act commences from the date of expiry of three months from the date of receipt of application for refund under Section 11B(1) of the Act and not on the expiry of the said period from the date on which orde....
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....xplanation (B)(ec) to Section 11B, for ease of reference. Explanation (B)(ec) to Section 11B "(ec) in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of the appellate authority, Appellate Tribunal or any court, the date of such judgment, decree, order or direction;" (emphasis added) Section 11B governs the substantive right to refund by prescribing the procedure, limitation and the "relevant date" for making a refund claim. Section 11BB, on the other hand, provides for interest on delayed payment of an admissible refund and stipulates that such interest becomes payable if the refund is not sanctioned within three months of the receipt of the refund application under Section 11B(1). Since Section 11BB contains no independent concept of "relevant date", its operation is necessarily predicated upon the determination of the relevant date under Explanation (B) to Section 11B, as is clear from the judgment of the Hon'ble Supreme Court in Sansera Engineering Ltd. (supra). 57. In Sansera Engineering Ltd. (supra) the Original Authority rejected the appellant's rebate claims under Rule 18 of the Centra....
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.... makes it abundantly clear that where a refund arises as a consequence of an appellate order, the starting point of limitation is the date of such order itself. The statute thus clearly contemplates that the right to claim refund accrues immediately upon the passing of the appellate order which grants relief to the assessee. 59. As a general rule, a positive direction for refund with interest may be appropriate where entitlement to refund of tax and interest are undisputed and only a ministerial calculation remains. This is merely illustrative. In most other cases, such a direction may prematurely foreclose issues such as the relevant date of filing a refund claim and commencement of interest, unjust enrichment, or compliance with statutory conditions etc. 60. In the present case, two well-settled principles, in my respectful view, militate against issuing a direction for refund together with interest. First, a decision ought ordinarily to be confined to the pleadings and the relief sought by the parties, thereby ensuring that the issues in dispute are tested through adversarial submissions and determined in accordance with law. Secondly, the entitlement to interest, if....
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..... OR B. Whether the impugned order merits to be set aside and the appeal be allowed, as stated by the ld. Member (Judicial) II. In case the impugned order merits to be set aside and the appeal allowed: A. Whether, upon allowing the appeal, the appellant is entitled only to consequential relief in accordance with law, including consideration of the provisions of Explanation (B)(ec) to Section 11B of the Central Excise Act, 1944, as held by the learned Member (Technical), OR B. Whether the appellant is entitled to the grant of refund along with applicable interest, as directed by the learned Member (Judicial), despite the Coordinate Bench decision in Galaxy Match Company (supra), differing with which would require reference of the matter to a Larger Bench? In view of the difference of opinion as framed, Registry is directed to place the order and appeal records before the Hon'ble President for further necessary action. (Order pronounced in open court on ___________) (separate points of difference) (AJAYAN T.V.) Member (Judicial) (M. AJIT KUMAR) Member (Technical) POINTS OF DIFFERENCE 62. I ha....
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....in an order and never to the office or person of its author. The authority of a judicial order rests upon the cogency of its reasons; equally, the legitimacy of a dissent rests upon the reasons assigned for disagreement. Judicial disagreement addresses reasons; it does not impugn the author. To conflate principled judicial disagreement with personal criticism is to overlook a distinction fundamental to the judicial process. The judicial process requires that disagreement with the order under dissent, be stated with reasons. It is through that disciplined exchange of reasons that the law develops while preserving the mutual respect that sustains such adjudication. Observations directed to an earlier and unrelated dissent, or to aspects beyond the issues arising in the present proceedings, are collateral to the limited exercise of formulating the points of difference and do not assist in identifying the questions requiring reference. 68. A dissent admits of no prescribed form or predetermined structure. It is necessarily responsive in character. Its content and contours are informed by the controversy before the Tribunal, the questions that legitimately arise for determination, th....
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....sent therefore does not transgress the limits of judicial propriety by holding that a question is unnecessary because it does not arise from the controversy before the Tribunal, or that another question is foreclosed at that stage by binding precedent. Both are themselves judicial conclusions upon questions legitimately arising in the appeal. 70. The present exercise of formulating the points of difference is of a far narrower compass. It is not an occasion for supplementing, revisiting or expanding the reasoning contained in either order, but only for identifying the precise questions upon which those orders differ. The reference neither expands nor contracts by reason of observations which neither give rise to nor resolve any difference on the issues requiring reference. It therefore suffices to reiterate a principle that ought to admit of no exception: dissent is to the order and not to its author. That distinction is fundamental and ought not to be lost sight of. 71. A reference to a learned Third Member is not an appellate proceeding against either order. Its office is confined to resolving the actual divergence between the Members on questions arising for determination ....