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TMI Blog2019 (8) TMI 485X X X X Extracts X X X X X X X X Extracts X X X X ..... nt filed a refund claim for Rs. 4,75,112/- on 26/03/2018 for refund of CENVAT credit lying unutilized in their accounts. After examining the said claim, it was noticed that for the corresponding period, the appellant had shown NIL balance of CENVAT credit in the Monthly Return, the appellant never carried out export for the corresponding period, failed to declare credit balance in TRANS-1. Accordingly, a show-cause notice dt. 12/06/2018 was issued to the appellant asking them to show-cause as to why instant refund should not be rejected on the above mentioned grounds. The Assistant Commissioner, Central Excise & Central Tax, North Division, Mangaluru vide his order dt. 25/06/2018 rejected the refund claim of the appellant and pointed out th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eals) has rejected the refund claim is beyond the show-cause notice because in the show-cause notice, no such ground has been alleged and the show-cause notice is absolutely vague with regard to the grounds on the basis of which the refund is proposed to be rejected. He further submitted that the finding of the Commissioner(Appeals) that the appellant has not disclosed the provision under which the refund claim has been filed is incorrect because the appellant has specifically mentioned in reply to the show-cause notice that the refund is sought under the Rule 5 of CENVAT Credit Rules, 2004 read with Section 11B of the Central Excise Act. He further submitted that appellants have filed all the documents in support of their claim along with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vailable in CENVAT credit account and not on the basis of closing balance disclosed in ER-1 returns. He further submitted that it is well settled legal position that substantial benefit of CENVAT credit cannot be denied on the ground of procedural lapse. The appellant submitted that failure to reflect the closing balance of CENVAT credit in ER1 returns is a rectifiable mistake in terms of Central Excise Rules, 2002. For this submissions, he relied upon the decision in the case of Jagdamba Polymers Ltd. Vs. CCE [2010(253) ELT 626]. He also relied upon the decision in the case of UOI Vs. Slovak India Trading Co. Pvt. Ltd. [2006(201) ELT 559 (Kar.) which was affirmed by the Hon'ble Supreme Court as reported in 2008(233) ELT A170 (SC). He furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt could have sought those documents from the appellant. Further I find that the refund claim by the appellant was under Section 11B read with Rule 5 of CENVAT Credit Rules which are the only provisions for seeking the refund. Further I find that not disclosing the unutilized balance of CENVAT credit in ER1 returns is only a procedural lapse and cannot be a ground to reject the refund claim in view of the decision in the case of Jagdamba Polymers Ltd. and Slovak India Trading Co. Pvt. Ltd. cited supra. In view of my discussion above, I am of the considered view that the impugned order is not sustainable in law and the same is set aside and the matter is remanded back to the original authority to examine all the documents which have been fil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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