TMI Blog2021 (7) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... not debited the refund amount in cenvat credit and service tax return and consequently the refund was rejected on the ground that the appellant has transitioned the input tax credit into TRAN-1 and as per Section 142(4), the refund is liable to be rejected once the cenvat credit is transferred to TRAN-1. The appellant has proved that he has actually reversed the amount of refund claimed in its cenvat credit account maintained in the books of accounts as prescribed in the Notification before filing the refund claim and Exhibit B clearly shows the reversal of cenvat credit but Commissioner(Appeals) has not appreciated that aspect and has wrongly observed in para 9.1 of the impugned order that the assessee has failed to debit the refund amount in cenvat account. As per the Notification No.27/2012, there is no requirement to debit in the service return, the only requirement under Condition 2(h) of Notification No.27/2012 dt. 18/06/2012 is that the amount i.e. claimed as refund under Rule 5 of the said Rules shall be debited by claimant from his cenvat credit account at the time of making the claim and this condition has been followed by the appellant before filing the claim of refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no service tax liability on the output services provided, the cenvat credit availed by the appellant remained unutilized. Appellant being an exporter was entitled to claim unutilized cenvat credit availed during the relevant period and appellant filed claim for refund of cenvat credit availed during the period April 2016 to June 2016 under Rule 5 of Cenvat Credit Rules read with Notification No.27/2012-CE dt. 18.06.2012. Thereafter a show-cause notice was issued to the appellant proposing to reject the refund claim for the reason that the appellant had transitioned the credit for the said period into GST regime and consequently the appellant has not complied with the conditions of the notification. After following the due process, the original authority rejected the refund claim. Aggrieved by the said order, the appellant filed appeal before the Commissioner(Appeals). Commissioner(Appeals) taking the ground that the Order-in-Original has traversed beyond the show-cause notice inasmuch as the ground for rejection did not form part of the show-cause notice and other grounds were also taken; but the Commissioner(Appeals) dismissed the appeal on the ground that the appellant has not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r [2002-TIOL-234-SC-CX] wherein the Hon ble Supreme Court had held that There are conditions and conditions. Some may be substantive, mandatory and based on considerations of policy and some others may merely belong to the area of procedure. It will be erroneous to attach equal importance to the non-observance of all conditions irrespective of the purposes they were intended to serve . Learned counsel also submitted that the impugned order is bad in law as the same traversed beyond the show-cause notice and does not consider the submissions made by the appellant during the course of adjudication proceedings. Learned counsel in his additional submissions filed at the time of argument has taken a ground that the impugned order is factually incorrect to the extent that in Para 9.1 of the impugned order, it has been observed that the assessee has failed to debit the refund amount in cenvat credit account, ST-3 return and Form A at the time of filing the refund claim on 16/06/2017 for the period April 2016 to June 2016 and thereby not complied with the conditions under Notification No.27/2012-CE NT dt. 18/06/2012. The learned counsel submitted that this finding in para 9.1 of the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4), the refund is liable to be rejected once the cenvat credit is transferred to TRAN-1. Further I find that from the documentary evidence on the record, the appellant has proved that he has actually reversed the amount of refund claimed in its cenvat credit account maintained in the books of accounts as prescribed in the Notification before filing the refund claim and Exhibit B clearly shows the reversal of cenvat credit but Commissioner(Appeals) has not appreciated that aspect and has wrongly observed in para 9.1 of the impugned order that the assessee has failed to debit the refund amount in cenvat account. As per the Notification No.27/2012, there is no requirement to debit in the service return, the only requirement under Condition 2(h) of Notification No.27/2012 dt. 18/06/2012 is that the amount i.e. claimed as refund under Rule 5 of the said Rules shall be debited by claimant from his cenvat credit account at the time of making the claim and this condition has been followed by the appellant before filing the claim of refund but the impugned order has misconstrued and misinterpreted the requirement of Notification No.27/2012. Further I find that appellant by sheer inadvertent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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