TMI Blog2018 (12) TMI 731X X X X Extracts X X X X X X X X Extracts X X X X ..... lly applicable to the present refund claim. It is an admitted fact that appellant was not put to notice before the rejection of its claim except being asked to submit copies of documents like invoices, GAR-7, cenvat claim certificate, copy of purchase order, work order, work sheet etc. and there is no noting available in the order-in-original as to if alternative plea for availment of cenvat credit was made before the adjudicating authority or not - There is no denying of the fact that adjudication of tax dispute being made by quasi judicial authorities, all provisions of the Code of Civil Procedure is not directly applicable to it. But when there is no express provision made to meet such a contingency which is not contemplated in the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me was not filed within the stipulated time. Appellant has not challenged the rejection order but put forth its claim with reference to judicial decisions that it was eligible to avail cenvat credit as per Rule 6(3) of the Service Tax Rules, 1994 in respect of the amount claimed as refund that was refused. 3. In the memo of appeal and during the course of hearing of appeal, in citing CESTAT decision in 2013 (31) STR 251 (Tri-Ahmd), 2013 (29) STR 393 (T-Mum), 2014- TIOL-1540-CESTAT-MUM, 2018-TIOL-1988-CESTAT-MUM, 2012 (26) STR 195 (Kar.), the ld. Counsel for the appellant submitted that it is eligible for cenvat credit in respect of inadmissible refund and Notification 9/2009-ST has not put any embargo for such availment of cenvat credit. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #8377; 20/- and the reason of such reduction of rate is unknown. In para 5 of his order, he has observed that in case of excess payment, law provides (i) to take credit under Rule 6(3) or (ii) to adjust the excess amount towards tax liability in succeeding month under Rule 6(4A) or (iii) also can claim as a refund under Section 11(B) and as the applicant had not been prudent to follow the procedure provided in the case of excess payment, provided under law and applied for refund under Section 11B after the limitation period, the order-in-original was sustainable. More importantly, the appellant s request for adjustment of excess payment is not the subject matter of appeal for which he did not give any direction for such adjustment. This bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, he cannot just confine his findings to the order appealed from since he has also to act like an adjudicating authority to examine documents, scrutinize records or hear such appellant during such enquiry. 7. There is no denying of the fact that adjudication of tax dispute being made by quasi judicial authorities, all provisions of the Code of Civil Procedure is not directly applicable to it. But when there is no express provision made to meet such a contingency which is not contemplated in the procedure prescribed for such adjudication of tax disputes, spirit of provision of civil procedure may be brought into service for effective adjudication. This fact is further fortified by the decision of the Hon'ble Supreme Court reporte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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