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M/s Morning Star India (P) Ltd. Versus CST, Delhi

2017 (10) TMI 510 - CESTAT NEW DELHI

Refund claim - Rule 5 of CCR, 2004 - denial on the ground that In Service Tax Returns, the Cenvat credit column was shown as ‘Nil’, therefore, verification of refund claim is not possible - Held that: - refund claim cannot be denied on the ground that the Cenvat credit has not shown in their ST-3 returns - reliance placed in the case of Broadcom India Research Pvt. Ltd. Versus Commr. of S.T., Bangalore [2015 (6) TMI 1030 - CESTAT BANGALORE] - on the ground that the appellant has not shown Cenvat .....

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ere received the new name of the company. In that circumstances, it cannot be held that FIRC are not co relatable - the matter needs examination at the end of the adjudicating authority for correlation of the invoices issued and payment received by them - matter on remand. - Refund claim - denial on the ground that Invoices are not addressed to the registered premise of the appellant and invoices were not issued in the name of the appellant - Held that: - it is not disputed that these servic .....

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d:- 31-8-2017 - Mr. Ashok Jindal, Member (Judicial) Shri Atul Kumar Gupta, C.A. - for the appellant Shri G.R. Singh, A.R. - for the respondent ORDER Per: Ashok Jindal The appellant is in appeal against the impugned order wherein refund claim filed under Rule 5 of Cenvat Credit Rules, 2004 was denied for the following reasons : (1.) In Service Tax Returns, the Cenvat credit column was shown as Nil , therefore, verification of refund claim is not possible. Hence, the refund cannot be granted. (2.) .....

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ed position that the appellant has complied with the conditions of the Notification No.5/2006 read with Rule 5 of the Cenvat Credit Rules, 2004 and the refund claims are admissible but on the grounds mentioned in paragraph 1 refund claims have been rejected. 4. I have gone through the case records and the case relied upon by the appellant, refund claim cannot be denied on the ground that the Cenvat credit has not shown in their ST-3 returns. The said view has been affirmed by this Tribunal in th .....

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here was a substantial difference, refund claim cannot be rejected. For the purpose of consideration of refund claim, the relevant documents on the basis of which credit was taken, nature of service and its nexus and utilization of the service for rendering output service are relevant and merely because there was some mistake in the ST-3 returns, substantive right of assessee for refund cannot be rejected. Therefore, I do not consider it necessary to consider the issue as to whether figures in S .....

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e of classification. As regards the ground of rejection of refund for the period 16-5-2008 to June, 2008 that the ST3 return for June, 2008 did not show any unutilized balance of Cenvat credit, it is to be made clear that refund is to be granted on the basis of the Cenvat credit available in the Cenvat Credit Account and not on the basis of the closing balance of Cenvat credit shown in ST-3 Return. Further the appellant submitted revised return showing correct closing balance of Cenvat credit bu .....

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of the provision of Rule 7C of the Rules, the revised return cannot be ignored simply on the ground that the same has been filed after a period provided under Rule 7B of the Rules. In these circumstances, we find that the matter requires re-consideration by the Adjudicating Authority in view of the provision of Rule 7C of the Rules. The impugned order is set aside, after waiving pre-deposit of the amount of Service Tax, interest and penalty and the matter is remanded to the Adjudicating Authori .....

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nvolving issuance of show cause notice followed by a speaking order. In this case, it has obviously not been done. Indeed, we find that even after adjusting the amount of refund of ₹ 56,58,994/- towards the Cenvat credit amount of ₹ 68,27,559/- summarily held to be inadmissible, no action has been initiated for recovering the remaining amount of ₹ 11,68,565/-as noted earlier. It has been held in the case of Hindustan Zinc Ltd. v. C.C.E., Jaipur II - 2009 (15) S.T.R. 633 (Tri.-D .....

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annot be deemed to be a show cause notice. 5. In view of the above observation, I hold that on the ground that the appellant has not shown Cenvat credit in their ST-3 returns, cannot be the ground to deny refund to the appellant. 6. The ld. Consultant for the appellant submits that during the impugned period, initially the appellant were known as M/s Hemscott India Pvt. Ltd. and with effect from 19.3.2008, the name of the appellant company has been changed to the present name. As the invoices we .....

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