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TMI Blog2019 (2) TMI 948X X X X Extracts X X X X X X X X Extracts X X X X ..... e tax. Since they were entitled for availing cenvat credit that the appellant filed a refund claim for Rs. 7,36,702/- vide their application dated 18.06.2012 However, vide show cause notice No.2611 dated 12.05.2017 the rejection of the said refund claim was proposed on the ground that the applicant /appellant has failed to fulfil the condition of the Notification No.27/2012 dated 18.06.2012, for the reason that the details of the Cenvat Credit were not appearing in the ST-3 Return for the period January, 2016 to March, 2016 and no concrete evidence was submitted with the claim that cenvat credit is available to them. The said proposal of rejection was confirmed by the Order in Original No.07 dated 13.09.2017 and appeal thereof was rejected. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has relied upon the following case laws to impress upon that refund claim cannot be rejected on the basis of mistakes in ST-3 returns: 1. Broadcom India Research Pvt. Ltd. vs. CST, Bangalore reported in 2015 - TIOL-2870-CESTAT-Bang. 2. Serco Global Services Pvt. Ltd. reported in 2015-TIOL-1044-CESTAT-Del. The order under challenge is prayed to be set aside and appeal is prayed to be allowed. 5. Ld. D.R. while rebutting these arguments has submitted that only document to check the balance available with the assessee at the end of quarter is the ST-3 return filed by the assessee. Since the assessee /appellant herein admittedly had filed the ST-3 return showing 'Nil' balance, the Commissioner (Appeals) has rightly formed an opinion about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee, as on the last date of quarter as well as on the date of filing of the refund. To check the balance lying with the assessee the relevant documents are the accounts of the assessee in the form of balance sheets, bills & invoices. Though whatever balance is being shown in the accounts of the assessee has to find mention in the ST-3 but due to the said documents being the basis of ST-3 as far as the amounts shown therein as balance is concerned, I am of the opinion that ST-3 cannot be the only reliable record to verify the balance cenvat credit at the end of the quarter, as is held by the adjudicating authority below. 8. It is apparent from the record that the appellant herein, after it came to his notice that ST-3 return for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in Judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence, processual, as much as substantive. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. A procedural law should not ordinarily be construed as mandatory, the procedural law is always subservien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B, it becomes clear that mistake in ST-3 return was a rectifiable mistake. Tribunal, Bangalore in Ceolric Services vs. CST, Bangalore reported in 2011 (23) STR 369 has held that the ST-3 returns are rectifiable and revised return should not have been discarded as nonest. The Tribunal further held as follows:- "In view 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, inte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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