TMI Blog2022 (1) TMI 765X X X X Extracts X X X X X X X X Extracts X X X X ..... he Month of June 2017, is not legal and proper, as substantive benefit cannot be denied on technical reasons, all the more, when there was no such condition in Notification No.8/2016-CE (NT) dated 01.03.2016. The original authority is directed to sanction the balance refund claim of ₹ 30,19,866/- along with interest from three months after the date of filing of refund claim, till the date of sanction of refund, within 45 days from the date of receipt or service of this order - Appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 51118 of 2019-SM - FINAL ORDER NO. 50041/2022 - Dated:- 18-1-2022 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) Shri Rajesh Chhibber, Advocate for the appellant Shri Pradeep Gupta, Authorised Representative for the respondent ORDER The issue involved in this appeal is whether the refund claim of unutilised input service tax credit under Rule 5 of Cenvat Credit Rules have been rightly rejected in part, for ₹ 30,19,866/-. 2. The appellant M/s Vaibhav Global Limited is a 100% EOU situated at Jaipur, registered with the Department and are engaged in manufacture of stone studded gold jewellery and silver jew ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of June, 2017. Thus cenvat credit taken of ₹ 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 is less. The closing balance is of ₹ 1,14,42,697/- as per ER-2 return for the month of June, 2017 but the assessee has filed refund claim of ₹ 1,44,62,563/-, so the refund claim appears liable to be restricted upto ₹ 1,14,42,697/-. Thus, refund claim of ₹ 30,19,866/- (14462563-11442697 = 3019866) appears not admissible to them. 6. Whereas, as per the condition No. (h) of the Notification No.27/2012-CE(NT) dated 18.06.2012 issued under rule 5 of the Cenvat Credit Rules, 2004 the amount that is claimed as refund under rule 5 of the said rules shall be debited by the claimant from his cenvat credit account at the time of maki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund claim should not be restricted to 1,06,59,940/-. 4. The refund claim was adjudicated by order-in-original dated 03.01.2018 on contest and accordingly the amount of ₹ 1,06,59,940/- was sanctioned. Further, the amount of ₹ 30,19,866/- was held non-admissible. Further, observing that the claim of ₹ 7,82,787/- stands withdrawn. 5. The case of the appellant is while filing ER-2 return for the month of June, 2017 (GST regime stated w.e.f. 01.07.2017) on 10.07.2017, the cenvat credit for input service taken during the month was erroneously declared as ₹ 65,88,446/- instead of the correct amount of ₹ 96,39,777/- as per the books of account. The said amount was considered while declaring the closing balance of credit on 30.06.2017, as ₹ 1,14,42,750/-, instead of the correct credit amount of ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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-CE (NT) dated 01.03.2016, whatever was declared as closing balance in the return for the month of June 2017, could only be considered as the actual closing balance. 8. Learned Authorised Representative appearing for the Revenue relies on the impugned order. 9. Having considered the rival contentions and on perusal of the facts, I find that the following facts are not in dispute. (i) The appellant is a 100%EOU (ii) The appellant was claiming cenvat credit (iii) The appellant was not making any domestic sale. (iii) The refund claim was being filed on quarterly basis in terms of Notification no.27/2012-CE(NT) Dated 18.06.2012 issued under Rule 5 of CCR, for the quarter ending June 2017. (iv) The appellant was eligible to claim refund of inputs input service credit. (v) There was a clerical mistake in mentioning the correct amount of credit claimed during the month of June 2017. (vi) The appellant could not file revised return ..... X X X X Extracts X X X X X X X X Extracts X X X X
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