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TMI Blog2022 (3) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... ant/Deputy Commissioners. Against the orders of the jurisdictional Assistant/Deputy Commissioner, Appellant preferred appeals before the Commissioner (Appeals), which were partly allowed or completely rejected. The details of the orders of Assistant/Deputy Commissioner and of Commissioner (Appeals) are as per Table 2. Table 2 S N o Refund Claim Order in Original No/Date Order in Appeal No/Date Amount Rejected 'Rs Date Perio d Amount 'Rs 1 31.01 .2014 Jul 13 to Sept 13 3,00,66,312/- R/18/14-15 31.07.2014 CD/839/MII I/2015 05.10.2015 3,00,66,312/- 2 29.12 .2014 Jan 14 to Mar 14 1,59,19,662/- 26/14-15 28.03.2015 CD/36/MIII /2016 01.12.2015 1,20,16,397/- 3 29.09 .2015 Jul 14 to Sept 14 99,68,229/- 27/15-16 23.12.2015 CD/462/MII I/2016 29.06.2016 39,62,291/- 4 23.03 .2016 Oct 14 to Dec 14 1,41,53,240/- 08/15-16 24.06.2016 PK/189/MII I/2016 29.12.2016 1,01,61,321/- 5 31.03 .2016 Jan 15 to Mar 15 1,06,96,217/- 09/15-16 29.06.2016 PK/190/MII I/2016 16.01.2017 51,30,468/- 2.2 Aggrieved by the orders of Commissioner (Appeals), Appellant have preferred these appeals. 3.1 We have heard Shri Yogesh Patki, Advocate for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Rule 5 [Aarvee Denims & Exporters Ltd [2010 (17) STR 262 (T)] 3.2 Arguing for revenue learned authorized representative while re-iterating the findings recorded in the impugned order submits: * Rule 5 of CENVAT Credit Rules, 2004 was amended in the year 2012, and was substituted by the new Rule. Also Notification No 27/2012-CE (NT) dated 18.06.2012 was issued superseding the earlier notification No 5/2006-CE (NT). Therefore the reliance placed by the appellant on the circular of 2010 and the decisions of the tribunal, which were in respect of earlier Rule 5 and Notification No 5/2006-CE (NT) is not justified and proper. * Rule 5 read with Notification No 27/2012, mandatorily prescribe for filing of only refund claim per quarter as is evident from the use of word "shall". It is settled principle of interpretation that use of word shall in a statue implies mandatory prescription as per the decisions below: * Asiatic Oxygen Ltd [1992 (57) ELT 583 (Cal)} * Malaysian Airlines [2010 (202) ELT 192 (Bom)] * Reliance is also placed on the decisions as follows to support the case of revenue: * Doaba Co-operative Sugar Mills [1998 (37) ELT 478 (SC)] * Rukmani Pakkwell Tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her services, during the relevant period; and (c) all inputs removed as such under sub-rule (5) of rule 3 against an invoice, during the period for which the claim is filed. (2) This rule shall apply to exports made on or after the 1st April, 2012: Provided that the refund may be claimed under this rule, as existing, prior to the commencement of the CENVAT Credit (Third Amendment) Rules, 2012, within a period of one year from such commencement: Provided further that no refund of credit shall be allowed if the manufacturer or provider of output service avails of drawback allowed under the Customs and Central Excise Duties and Service Tax Drawback Rules, 1995, or claims rebate of duty under the Central Excise Rules, 2002, in respect of such duty; or claims rebate of service tax under the Export of Services Rules, 2005 in respect of such tax. Explanation 1.- For the purposes of this rule,- {1) "export service" means a service which is provided as per the provisions of Export of Services Rules, 2005, whether the payment is received or not; (2) "relevant period" means the period for which the claim is filed. Explanation 2.-For the purposes of this rule, the value of serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovision of services shall be determined as per the provisions of the Point of Taxation Rules, 2011. (g) 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. (h) 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 making the claim. (i) In case the amount of refund sanctioned is less than the amount of refund claimed, then the claimant may take back the credit of the difference between the amount claimed and amount sanctioned. 3. Procedure for filing the refund claim. - (a) The manufacturer or provider of output service, as the case may be, shall submit an application in Form A annexed to the notification, to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise, as the case may be, in whose jurisdiction,- (i) the factory from which the final products are exported is situated. (ii) the registered premises of the provider of service from which output services are exported is situated. (b) The appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the services determined in terms of Clause D of sub-rule (1) of rule 5. 3. Total CENVAT Credit taken on inputs and input services during the quarter. 4. Amount reversed in terms of sub-rule (5C) of rule 3 5. Net CENVAT Credit = (3) - (4) 6. Total value of all goods cleared during the quarter including exempted goods, dutiable goods and goods for export. 7. Export turnover of services and value of all other services, provided during the said quarter. 8. All inputs removed as such under sub-rule (5) of rule 3, against an invoice during the quarter 9. Total Turnover = (6) + (7) + (8) 10. Refund amount as per the formula = (1) * (5)/(9), in respect of goods exported. 11. Refund amount as per the formula = (2) * (5)/(9), in respect of services exported. 12. Balance of CENVAT Credit available on the last day of quarter. 13. Balance of CENVAT Credit available on the day of filing the refund claim. 14. Amount claimed as refund, [Amount shall be less than the minimum of (10), (12) and (13) in case of goods or the minimum of (11), (12) and (13) in case of services] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for information and necessary action. (ii)The Commissioner of Central Excise. Assistant Commissioner or Deputy Commissioner of Central Excise (i) Passed for payment of Rs. ___ (Rupees ___) The amount is adjustable under head "0038 - Union Excise Duties - Deduct Refunds/0044 - Service tax - Deduct Refunds". (ii) Amount credited to the account of the claimant as per the details below: Amount refunded Account Number Reference No. of transfer Name of the Bank Address of the Branch Date dd mm yyyy Chief Accounts officer Annexure A-I It is certified that : (a) I am qualified auditor to audit the books of account of M/s. ____________ (b) I have audited the books of account of M/s. ____ for the quarter ending __ (c) The value of the export turnover of services and total turnover of services mentioned at S. No. 2 and 7 in the table in Form A (i) Is correct as per the books of account and relevant records of M/s ______ (ii) Is in accordance with the provisions of rule 5 of the CENVAT Credit Rules, 2004. Date dd mm yyyy Auditor 4.3 Arguing for revenue learned authorized representative has relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ws: RULE 14. Recovery of CENVAT credit wrongly taken or erroneously refunded. - (1) (i) Where the CENVAT credit has been taken wrongly but not utilised, the same shall be recovered from the manufacturer or the provider of output service, as the case may be, and the provisions of section 11A of the Excise Act or section 73 of the Finance Act, 1994 (32 of 1994), as the case may be, shall apply mutatis mutandis for effecting such recoveries; (ii) Where the CENVAT credit has been taken and utilised wrongly or has been erroneously refunded, the same shall be recovered along with interest from the manufacturer or the provider of output service, as the case may be, and the provisions of sections 11A and 11AA of the Excise Act or sections 73 and 75 of the Finance Act, 1994, as the case may be, shall apply mutatis mutandis for effecting such recoveries. 4.7 From the reading of the provisions of Rule 14 it is quite evident that if for a moment it is accepted that certain credit were wrongly or erroneously taken by the appellant contrary to the provisions contained in Rule 3 and 4 of the said Rules, then the same could have been denied by following the procedure as laid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted ......"" 4.11 In the case of Hussein Ghadially v. State of Gujarat [(2014) 8 SCC 425] "19. Thirdly, because if the Statute provides for a thing to be done in a particular manner, then it must be done in that manner alone. All other modes or methods of doing that thing must be deemed to have been prohibited. That proposition of law first was stated in Taylor v. Taylor (1876) 1 Ch. D426 and adopted later by the Judicial Committee in Nazir Ahmed v. King Emperor AIR 1936 PC 253 and by this Court in a series of judgments including those in Rao Shiv Bahadur Singh & Anr. v. State of Vindhya Pradesh AIR 1954 SC 322, State of Uttar Pradesh v. Singhara Singh and Ors. AIR 1964 SC 358, Chandra Kishore Jha v. Mahavir Prasad & Ors. 1999 (8) SCC 266, Dhananjaya Reddy v. State of Karnataka 2001 (4) SCC 9 and Gujarat Urja Vikas Nigam Ltd. V. Essar Power Ltd. 2008 (4) SCC 755. The principle stated in the above decisions applies to the cases at hand not because ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 ibid, in our considered opinion, cannot stand for judicial scrutiny. Since the department has not specifically alleged regarding actual exportation of services by the assessee-appellant and use/utilization of disputed services for such activities, benefit of refund should be available in terms of the unambiguous provisions contained in Rule 5 ibid, subject only to adherence of the formula laid down thereunder. The Learned Advocate appearing for the assessee-appellant submitted that it should be entitled for the benefit of interest for non-consideration of the refund application within the stipulated time-frame prescribed under the statute. However, on perusal of the case records, more specifically the grounds of appeal annexed to the appeal memorandum, we find that the assessee- appellant has not raised any plea on the issue of payment of interest therein. Since such issue is not arising out of the appeal proceedings before the Tribunal, it will not be appropriate to consider such plea at this juncture for a decision as emphasized by the Learned Advocate for the appellant." 4.13 In case of ADF Pvt Ltd [2020 (40) GSTL 349 (T-Hyd)], again Hyderabad bench, has observed as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X
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