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2022 (12) TMI 137 - AT - Service TaxRejection of refund claim - non-availability of balance in cenvat credit - non-compliance with condition of debit of amount equivalent to refund claim in CENVAT credit account - rule 5 of CENVAT Credit Rules, 2004 - HELD THAT:- There is no doubt that the remand order takes note of the evidence furnished by the appellant to substantiate the claim of having complied with condition of debit of the CENVAT credit account by directing the original authority to scrutinise this submission once again. There is also no doubt that the lower authorities, in proceedings pursuant to the remand order, have come to the conclusion that not carrying forward the balance of credit in the returns pertaining to the said period is not sufficient for accepting the claim of the appellant that procedural requirements had been complied with. The provisions in the notification for operationalizing of rule 5 of CENVAT Credit Rules, 2004 include debiting of the claim amount before submission of application for the same. There is a purpose behind this mandate: that the claimed amount would be erased from the credit account and, thus, not utilised even temporarily once monetization has been sought. Ideally, credit should be reversed as and when export takes place; however, with eligibility for refund arising only upon receipt of proceeds of export and the scheme having provided for filing of claim within a year thereafter, the dilution of ideal by shift to the quarter in which the claim is preferred is acceptable approximation. Therefore, the submission of the appellant would meet the test of sufficiency only by evincing continuous availability of such balance from the date of filing of the claim for refund till the date on which the opening balance reflected write-off of the entire credit as claimed by them - the appellant is, squarely and singularly, responsible for failure to furnish proof of the required availability of credit till the date of write off and, in the absence of any such evidence even at this stage of appeal or even assurance of being ready and willing to do so, there is no scope for further ascertainment. The decision of the Tribunal in SILICON IMAGE INDIA RESEARCH & DEVELOPMENT PVT. LTD. AND ORS. VERSUS CCE & ST, HYDERABAD-IV AND ORS. [2017 (8) TMI 1686 - CESTAT HYDERABAD] and in BA CONTINUUM INDIA PVT. LTD. VERSUS COMMISSIONER OF SERVICE TAX-II, MUMBAI [2018 (6) TMI 1011 - CESTAT MUMBAI] have, no doubt, enumerated the principle that a rectifiable lapse in procedure should not lead to denial of refund but the outcome therein has been decided on the fact of post-claim rectification. While concurring with the principle, we find that, on the facts made known in this appeal, material presented before us does not support extending that outcome in this dispute. There are no reason to hold the impugned order as contrary to the terms of the remand ordered in the first round of appeal - appeal dismissed.
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