2018 (1) TMI 1482 - AT - Service Tax

Refund of CENVAT Credit - rejection on the ground that the export turnover was not mentioned in the ST-3 returns for the relevant period - N/N. 27/2012 dated 18-6-2012 - Held that - Neither in the notification nor in the Cenvat Credit Rules there is a condition that the refund sanctioning authority has to make a reference to ST-3 returns for ascertaining the export turnover of services - also the appellant had given the C.A. certificate and the certification about their FIRC for realized foreign currency. The facts of the export of services and receipt of foreign currency exchange had not been disputed. By bringing the condition of non-declaration of export turnover in ST-3 returns the adjudicating authority as well as the Ld. Commissioner (Appeals) has attempted to bring an extraneous condition which is not prescribed in the notification. It will be in interest of justice that the matter is remanded back to the adjudicating authority to re-examine the contested refund claim - appeal allowed by way of remand.

Summary

Issues:
Refund claim rejection based on non-declaration of export turnover in ST-3 returns under Notification No. 27/2012 - Appellant's appeal against rejection - Interpretation of conditions in the notification and Cenvat Credit Rules - Comparison with previous orders - Procedural lapse vs. mandatory requirement.

Analysis:
The appellant filed a refund claim under Notification No. 27/2012, which was rejected due to non-mention of export turnover in ST-3 returns. The appeal before the Commissioner (Appeals) was also dismissed. The appellant contended that the condition of export turnover declaration in ST-3 returns was not specified in the notification, citing Rule 5(1)(D) of the Cenvat Credit Rules. They provided a C.A. certificate and referred to a previous order where non-disclosure of export turnover was considered a procedural lapse. The AR argued that non-declaration in ST-3 returns was mandatory, supporting the Commissioner (Appeals)' findings.

Upon hearing both sides, the Tribunal upheld the decision on refund for outdoor catering but analyzed the conditions in Notification No. 27/2012. The notification specified the method for determining export turnover of services under Rule 5(1)(D) of the Cenvat Credit Rules. The Tribunal noted that the notification did not mandate referencing ST-3 returns for export turnover verification. The appellant had submitted relevant certificates and proof of foreign currency realization, which were undisputed. The Tribunal deemed the non-declaration of export turnover, without allegations of evasion, as a procedural lapse, not a prescribed condition. Referring to a previous order where a similar appeal was allowed, the Tribunal remanded the case to the adjudicating authority for a re-examination, granting the appellant a fair chance to present their case.

In conclusion, the Tribunal disposed of the appeal by remanding the matter for further review, emphasizing the importance of adhering to specified conditions in notifications and rules while considering procedural lapses in refund claims related to export turnover declarations.