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TMI Blog2022 (1) TMI 765X X X X Extracts X X X X X X X X Extracts X X X X ..... pur, registered with the Department and are engaged in manufacture of stone studded gold jewellery and silver jewellery etc. falling under Chapter 71 of the Schedule to the Central Excise Tariff Act, 1985. Due to the nature of export, they have taken cenvat credit on input services & inputs and under the provision of Rule 5 of Cenvat Credit Rules, 2004 read with Notification No. 27/2012-CE (NT) dated 18.06.2012; they applied for periodical refund. In the normal course of business, the appellant applied for refund of Rs. 1,44,62,563/- on 06.10.2017 for the quarter April, 2017 to June, 2017. Pursuant to the refund application, show cause notice dated 28.11.2017 was issued wherein in para 3, 4, 5, 6, 7 and 8, it is observed as follows:- "3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but the assessee did not revise the ER-2 return for the month of June, 2017, so there is no provision of accept the revised details of cenvat credit taken of Rs. 96,39,777/- instead of Rs. 65,88,446/- for the month of June, 2017. Thus cenvat credit taken of Rs. 65,88,446/- appears liable to be considered for the month of June, 2017 which has already mentioned in ER-2 return for the month of June, 2017. 5. Whereas as per the condition No. (g) of the Notification No.27/2012-CE(NT) dated 18.06.2012 issued under rule 5 of the Cenvat Credit Rules, 2004 the amount of refund claimed shall not be more than the amount lying in balance at the end of quarter for which refund claim is being made or at the time of filing of the refund claim, whichever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to them. Out of this, since the assessee have withdrawn Rs. 7,82,757/-, it appears that refund claim of Rs. 1,06,59,940/- is admissible to them. 7. Whereas further, it is found that the value of goods exported during the quarter is Rs. 48,98,34,179/- as per the ER-2 refund filed by the assessee and refund claim appears admissible for Rs. 1,06,59,940/- in terms of Rule 5 of the Cenvat Credit Rules, 2004 (Notification No. 27/2012-CE(NT) dated 18.06.2012) for the quarter April, 2017 to June, 2017 on the ground that they had exported the goods and there was no DTA clearance, hence the cenvat credit of service tax has been accumulated on input service received in the factory and they are not in position to utilise the same. 8. Thus, refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tead of the correct credit amount of Rs. 1,44,42,750/-. However, the discrepancy was not noticed while filing the monthly return for April, 2017 and May, 2017. The said mistake was noticed by the appellant at the time of preparing of the refund claim in last week of August. However, by that time the time for filing of revised return (last date 31.07.2017) was over in terms of Notification No. 8/ 2016-CE (NT). According to the Notification, return could be revised only till the end of the month in which the original return was filed. Thus, the appellant brought the error/ fact to the notice of the Department vide letter dated 04.09.2017 praying therein that during the month of June, 2017 the balance of credit taken should be read as Rs. 1,44 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 7.2 Further, it is submitted that both the lower authorities were appraised of decision of this Tribunal in the case of Mach Aero Components P. Ltd. vs. CC & ST reported 2017 (3) GSTL 348 (Tri. Bang.) which was almost on identical issue, that mere non furnishing of some information in ER12 Return could not be the sole basis to deny the otherwise eligible benefit. None of the authorities have discussed the said decision in their orders. 7.3 The appellant also relied upon the ruling of this Tribunal in the case of Cenveo Publisher Services India Ltd. vs. CCE & ST reported in 2018 (9) GSTL 416 (Tri. All.). The contention of department is that once the period for filing revised return was over under the provisions Notification No. 8/2016-C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund form, filed on 06.10.2017. 10. A perusal of clause (g) of Notification No.27/2017 (supra) shows that it speaks of closing balance of credit available with assessee, and nowhere in entire notification, there is any mention that the closing balance is to be considered as the amount shown as closing balance in ER2 Return. 10.1 The objection of department is solely on the basis of closing balance declared in ER2 Return. The stand of department that since the appellant did not opt for filing revised return within the given time, they could claim refund of the amount as declared in ER2 Return only. But, there has been no objection to the submissions made by the appellant from the very beginning. 10.2 It is a settled law that the substan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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