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TMI Blog2016 (5) TMI 999X X X X Extracts X X X X X X X X Extracts X X X X ..... service was denied on the ground that the appellant have taken credit twice and the appellant is not contesting the same, hence the same is upheld. The matters are remanded to the adjudicating authority to pass a fresh de novo adjudication by taking into consideration my above observations. - Appeals allowed by way of remand - Appeal No. ST/89439, 89746/2014 and Appeal No. ST/86335/2015 - A/87322-87324/SMB/16 - Dated:- 25-4-2016 - SHRI RAMESH NAIR, MEMBER (JUDICIAL) For the Petitioner : Shri D.H. Nadkarni, Advocate with Shri M.P. Joshi, Advocate For the Respondent : Shri Sajeev Nair, E.O. (A.R) And Ms. P. Vinitha Sekhar, Dy. Commr.(A.R.) ORDER PER : RAMESH NAIR These appeals are directed against Orders-in-Appeals passed by Commissioner (Appeals) Central Excise Service Tax, Pune-III. 2. The issue involved in the present appeals are that the appellants have filed the refund claim under Rule 5 of the Cenvat Credit Rules, 2004 for the quarter July 2012 to September 2012. The adjudicating authority sanctioned the refund partly and rejected the part of the refund on the ground that the Cenvat Credit pertaining to period prior to 1.7.2012 was claimed as N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vised return online. Revised return is not possible online after the due date of filing return. However, from the Cenvat account, it can be clearly seen that the credit was infact availed in July to September 2012 even though the invoice pertains to the period prior to 1.7.2012. He submits that the appellant is prepared to give any other evidence if required to justify their claim that the Cenvat Credit was availed in July to September 2012 and not in April to June 2012. He alternatively submits that even though if it is contended the credit pertains to the period prior to 1.7.2012, the same was carried forward in the quarter July to September 2012. He submits that the services in respect of all those invoices which are dated prior to 1.7.2012 were indeed used in relation to export of service taken place in the quarter July to September 2012. Therefore, the said credit should be considered as availed during the relevant period and should not have been reduced from the total Net Cenvat Credit for the quarter July to September 2012. 4. On the other hand, Ms. P. Vinitha Sekhar Ld. Dy. Commissioner (A.R.) and Shri Sanjeev Nair, Ld. Examining Officer (A.R.) appearing on behalf of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t it covers the total Cenvat Credit availed on input and input services during the relevant period. Therefore in my view whatever Cenvat Credit is availed in the quarter July to September, 2012 shall be taken as Net Cenvat Credit. If the Cenvat credit is availed in any period prior to 1-7-2012, the same cannot be taken into Net Cenvat Credit for the quarter July to September, 2012. Therefore even though the services used for export of service for the quarter July to September, 2012 if such services were received during the period prior to 1-7-2012 and Cenvat Credit taken prior to 1-7-2012, the same cannot be included in the Net Cenvat Credit for the quarter July to September, 2012. Now the only issue remains on fact is that in the present case whether the amount of Cenvat Credit considered by the lower authorities for arriving at the Net Cenvat Credit in the quarter July to September 2012 by reducing the amount of Cenvat Cr4edit in the quarter July to September 2012 is correct or otherwise. I observe that both the lower authorities have heavily relied upon the quarterly ST-3 return that whatever Cenvat Credit availment was shown in the ST-3 return for April to June, 2012 is correct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on that credit though availed in December 2005 but since it is pertaining to the period March to November 2005. The PLA payment made during March to November 2005 shall be reduced to the extent of Cenvat Credit which was available in that period. However, the Honble Gujarat High Court maintaining the Tribunals decision held that the credit was taken in December 2005, the same cannot be considered as Cenvat Credit for the period March to November 2005. The said judgment is reproduced below: Revenue is in appeal against the judgment of the Customs, Excise and Service Tax Appellate Tribunal ( the Tribunal for short) dated 11-6-2012 raising following questions for our consideration: (i) Whether the Tribunal was legal and correct in allowing the utilization of Cenvat credit in the month of December 2005 which ought to have been taken and utilized in the month of November 2005 as per the provisions of the Notification No. 39/2001-C.E., dated 31-7-2001? (ii) Whether by holding supra, the Tribunal is right in reading down the provisions of the Notification No. 39/2001-C.E., dated 31-7-2001, as amended, and thereby rendering the said provisions redundant? 2. Briefl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as required under the rules, etc. On account of such factors, the assessee could not avail of the Cenvat credit immediately. It was, in fact, stated that for the period between March 2005 and November 2005, due to combination of such factors, though the goods were received in the factory, but Cenvat credit was not available and therefore, no entries could be made for crediting the same in the Cenvat account. 6. In this context, the first appellate authority held and observed as under : The issue in this appeal is not related to admissibility of CENVAT credit but whether the conditions stipulated in the Notification No. 39/2001 fulfilled or not before sanctioning of the refund of amount paid under P.L.A. under the said Notification. It is evident from the records that the appellants had taken the input/Capital Goods/Service Tax credit of ₹ 70,93,637/- in their Credit Account in December 2005 and utilised the same for payment of duty on the goods cleared during December, 2005. Further there is no dispute on the fact that the appellants had first utilised the entire CENVAT credit available in their CENVAT account as on the last day of December 2005 and the credit b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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