9911796707
TMI Blog2015 (11) TMI 1338X X X X Extracts X X X X X X X X Extracts X X X X ..... any case, all the information was provided to the Revenue before the decision of the case and there is no possibility of any manipulation etc. - infirmity in the order passed by the Commissioner (Appeals) - Decided against Revenue. - Appeal No. E/90125/14- Mum - - - Dated:- 6-2-2015 - Mr. P.K. Jain, Member (Technical) For the Petitioner : Shri V.K. Shastri, AC (AR) ORDER Per: P.K. Jain: The brief facts of the case are that the respondents are 100% EOU and availing Cenvat credit facilities. They filed a refund claim under Rule 5 of CENVAT Credit Rules, 2004 for the period July 2012 to September 2012. The said claim was rejected on the ground that the respondent is not satisfying the clause 2(h) of Notification 27/12-C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f filing of the refund claim (01.07.2013), but had not been reflected in the ER-2 Return for July 2013 filed by the Appellant; that thus it is also a fact that the debit of refund claim amount was done in the CENVAT Credit account of the Appellant before issuance of the Show Cause Notice dated 25-09-2013. Further, in the present case, the facts of export of goods and consequent accumulation of CENVAT Credit on account of export of goods without payment of duty are not disputed. It is also not disputed that except the alleged violation of the condition contained in clause 2(h) of Para 2.0 of the Notification No. 27/201 2-CE(N.T.), the Appellant had fulfilled all the conditions and limitations of Notification No. 27/2012-CE(N.T.). Further, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication No. 5/2006-CE(N.T.) to the new Notification No. 27/2012-CE(N.T.), but also it has to be seen in light of the factual position of this case that this refund claim under Rule 5 of the CCR was first refund claim of the Appellant and they had indeed debited the said amount of ₹ 21,94,913/- in their CENVAT Credit account on 01.07.2013, which is also the date of filing of the impugned refund claim. Further, the said debit was reflected by the Appellant in the ER-2 Return for August 2013. On this ground, a constructive approach appears proper in view of the eventual debit of the amount on 01-07-2013 by the Appellant in their CENVAT credit account, which is established from records. I have also noticed that the purpose of this debitin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ural requirement which is directory in nature. In the present case, even the said requirement stands fulfilled, by the debit of CENVAT credit account made by the Appellant on 01-07-2013. Thus, I find that the decision of rejection of impugned refund claim by Ld. Respondent by treating the said requirement as having not been fulfilled, is not correct. 15. It is settled law that the conditions of a Notification which are mandatory are required to be essentially fulfilled. The non-fulfillment of requirements which are directory, i.e. the requirements to complete the procedure, can be condoned if mandatory requirements have been fulfilled. The Hon'ble Supreme Court, in the case of CCE, New Delhi Vs. Had Chand Shri Gopal Others etc. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts that are important, especially when a party seeks the benefits of an exemption clause that are important. Substantial compliance of an enactment is insisted, where mandatory and directory requirements are lumped together, for in such a case, if mandatory requirements are complied with, it will be proper to say that the enactment has been substantially complied with notwithstanding the non-compliance of directory requirements. In cases where substantial compliance has been found, there has been actual compliance with the statute, albeit procedurally faulty. The doctrine of substantial compliance seeks to preserve the need to comply strictly with the conditions or requirements that are important to invoke a tax or duty exemption and to fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the passing of the Order-in-Original. As concluded hereinabove, the said defect had been rectified by the Appellant suo moto, even before the issuance of the Show Cause Notice. Further, the Ld. Respondent has ignored the provisions of clauses (i) and (g) of Para 3.0 of Notification No. 27/2012-CE(NT) which prescribe the correct method for sanction of refund claim. Therefore, I conclude that the findings of the Ld. Adjudicating Authority are not maintainable in the eyes of law and the refund is admissible to the Appellant as all the mandatory conditions relating to refund of CENVAT credit under Rule 5 of the CCR read with Notification No. 27/2012-CE(N.T.) have been fulfilled. 4. I find that in the appeal, none of the findings of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
