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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 ..... September 2012. It was contended by the lower authority that as per the ST-3 Return filed by the appellants the Cenvat Credit was shown to have been taken during the quarter April 2012 to June 2012. However, the record of Cenvat Credit of the appellant is showing credit availed during the quarter July 2012 to September 2012. The adjudicating authority discarded this Cenvat Credit on the ground that the details of Cenvat credit shown in the S.T.3 Return which is a statutory return should be taken as the correct position of availment of Cenvat Credit. It was also contended that the appellants have not filed a revised claim to support their claim that the Cenvat Credit availment of July to September 2012 was wrongly shown in the S.T.3 Return for the quarter April to June 2012. In the appeal No. ST/86335/2015-Mum of Saama Technologies (India) Pvt. Ltd. the lower authority also denied the refund/cenvat credit in respect of three services i.e. Air Travel Agents Service, Rent-a-cab Scheme Operators Services and Telecommunication/Internet Telecommunication services. Aggreived by the adjudication order, the appellants filed appeals before the Commissioner (Appeals) who concurring with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers. She submits that as per the clear definition of Net Cenvat credit, which is to be considered for calculation of refund under Rule 5 of the Cenvat Credit Rules, the only Cenvat credit which is availed in the quarter shall be taken as "Net Cenvat Credit" and any of the Cenvat credit which pertains to the period other than the relevant quarter can not be included in the Net Cenvat credit. In the present case, the appellant taken the net Cenvat credit not only in respect of Cenvat credit pertains to the quarter July to September, 2012, but also the Cenvat credit which pertains to the period prior to 1.7.2012. Therefore the said Cenvat credit is not the part and parcel of the net Cenvat credit as provided in Rule 5 of Cenvat Credit Rules 2004. As regards the claim of the Appellants that though the invoices showing the dates of the period prior to 1-7-2012 the credit was availed in the quarter July to September, 2012 is not correct for the reason that the appellants have declared the Cenvat Credit in the ST.3 return for the quarter April to June, 2012. The lower authority have correctly relied upon the ST.3 return which is a statutory return. After declaring in the ST.3 return unles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant was brushed aside. In this regard, I am of the view that just because the appellant have filed ST-3 return and shown the Cenvat Credit availed in the quarter cannot be the sole basis to conclude that the Cenvat Credit was availed in the quarter April to June, 2012. Appellant made categorical statement in their submissions that the Cenvat Credit shown in the quarter April to June, 2012 is due to clerical error and in support of this statement they also produced the Cenvat Credit account maintained on the computer which shows that the Cenvat Credit was availed in the quarter July 2012 to September, 2012. I found that the appellants are 100% exporting their services, therefore if the appellants would have availed Cenvat Credit in the quarter April to June 2012, nothing prevented them to claim the refund for the quarter April to June 2012 but it appears that since the appellants have availed the Cenvat Credit in the quarter July to September 2012, they can only make claim of refund of Cenvat Credit for the quarter July to September 2012. However, since the lower authorities have concluded the aspect of availment of Cenvat Credit in respect of the disputed amount only on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for industry situated in Kutch area under Notification No. 39/2001, dated 31-7-2001, had claimed refund of a sum of Rs. 4,29,44,310/-. The Adjudicating Officer restricted such claim to Rs. 60,50,093 and disallowed the remaining amount of refund claim of Rs. 3,68,94,217/-. Aggrieved by such decision, the assessee carried the matter in appeal. The Commissioner (Appeals) reversed the order of the Adjudicating Officer and allowed the remaining claim as well, upon which the Department approached the Tribunal. The Tribunal confirmed the view of the appellate authority. 3. In nut shell, the dispute between the Department and the assessee was with respect to interpretation of para 1A of the exemption notification which was introduced under an amendment Notification No. 65/2003, dated 6-8-2003. 4. Having perused the documents on record with the assistance of the learned counsel for the Department, we notice that there was no dispute that the goods manufactured by the assessee and cleared were covered under such exemption notification. The only question was whether the assessee fulfilled the conditions, in particular, condition contained in para 1A mentioned above, relevant portion of w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complied the condition 1A of the said Notification and eligible for refund of amount paid through P.L.A. Further when the appellants have not taken the credit of Rs. 60,50,903/- in the CENVAT Credit Account in November 2005, the Lower Adjudicating Authority assumption that there was a closing balance of credit in November, 2005 is not justified and not backed by law. Apparently the Lower Adjudicating Authority has not disputed the admissibility of CENVAT credit or otherwise on the invoices pertaining to month of March, 2005 to November 2005 which is outside the scope of present appeal. So long as the conditions of the said Notification fulfilled and the credit balance was NIL on the last date of December 2005 the amount paid in P.L.A. during December are liable to be refunded in full." This view is confirmed by the Tribunal in the impugned judgment. 7. In our opinion, the above view does not suffer from any illegality. What para 1A introduced by way of amendment in the exemption notification under consideration required was the assessee to make first utilization of the whole of the Cenvat credit available on the last date of the month under consideration for payment of duty o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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