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TMI Blog2018 (6) TMI 814X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal - It was a technical mistake which has been rectified by the debit entry made later. The Rule or the notification does not provide the flexibility to the officers or the Tribunal to relax condition 2(h) of the notification. Refund rightly rejected - appeal dismissed - decided against appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant had mistakenly not entered these details in ST-3 returns but had subsequently filed revised the returns rectifying the defects. It is his further submission that the appellant is largely an exporter with a very small turnover in the domestic sector and hence always had accumulated CENVAT credit. It is his submission that due to ignorance, the appellant had not claimed refund of service tax during the previous periods but did so for the period from April, 2015 onwards. They had filed refund claims but had not debited the amount in time i.e., before or at the time of making the claim. This mistake was rectified by them by subsequently debiting the amount. It an honest mistake because of which they should not be deprived of their substantive benefit of refund. It is his further submission the appellant does not stand to gain anything by not debiting as they always had surplus credit in their books of accounts because of their exports. Considering these facts, the Learned Commissioner (Appeals) should have taken a more holistic view of the situation and allowed them to refund which he did not. His submission is that the Tribunal should take a larger view of the situation and app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) The legislation is the exclusive privilege of the Legislature; b) When the legislature delegates powers to make Rules, Regulations, issue notifications, etc., such delegation is done to the Government which is answerable to the Legislature any and c) All delegated legislations are, through a well laid down process, placed before the legislature and scrutinised by it and where it feels necessary, amended as per its directions. 8. Of course, High Courts and Supreme Court who have the mandate to interpret the Constitution, review the legislation for its constitutionality, etc., which is another additional check on the legislation. However, neither the officers enforcing the law nor the quasi-judicial authorities including the Tribunals (which are creations of the law) have the power to modify, amend, insert, delete, stretch or restrict the scope of the Act, Rules, Regulations or the Notifications. Their role is confined to interpreting the laws and applying them to the case in hand. The Hon'ble Apex Court in the case of UOI vs Kirloskar Pneumatics Company [1996 (84) ELT 401 (SC)] not only clarified this position but further held that even when exercising the powers under Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... framework for me to decide the issue at hand. The question to be decided is whether the Order-in-Appeal passed by the First Appellate Authority is as per the statutory provisions or not. Rule 5 of the CENVAT Credit Rules, 2004 and the Notification No.05/2006 - CE (NT) prescribing the conditions, limitations and safeguards read as follows: "Rule 5 of CENVAT Credit Rules and Notification No. 5/2006 -C.E. (N.T.) [5. Refund of CENVAT Credit. - (1) A manufacturer who clears a final product or an intermediate product for export without payment of duty under bond or letter of undertaking, or a service provider who provides an output service which is exported without payment of service tax, shall be allowed refund of CENVAT credit as determined by the following formula subject to procedure, safeguards, conditions and limitations, as may be specified by the Board by notification in the Official Gazette: Refund amount = (Export turnover of goods+ Export turnover of services) x Net CENVAT credit/Total turnover Where,- (A) "Refund amount" means the maximum refund that is admissible; (B) "Net CENVAT credit" means total CENVAT credit availed on inputs and input se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of services, shall be determined in the same manner as the value for the purposes of sub-rule (3) and (3A) of rule 6 is determined.] Notification No. 5/2006-CE In exercise of the powers conferred by rule 5 of the CENVAT Credit Rules, 2004 (hereinafter referred to as the "said rules"), and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue), No 5/2006 - Central Excise (N.T), dated the 14th March, 2006, published in Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i) vide number G.S.R 156(E), dated the 14th March, 2006, the Central Board of Excise and Customs hereby directs that refund of CENVAT credit shall be allowed subject to the procedure, safeguards, conditions and limitations as specified below, namely:-. 2.0 Safeguards, conditions and limitations.- Refund of CENVAT Credit under rule 5 of the said rules, shall be subjected to the following safeguards, conditions and limitations, namely:- (a) the manufacturer or provider of output service shall submit not more than one claim of refund under this rule for every quarter: provided that a person exporting goods and service simultaneously, may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r for which refund is being claimed shall be filed by the claimant, before the expiry of the period specified in section 11B of the Central Excise Act, 1944 (1 of 1944). (c) The application for the refund should be signed by- (i) the individual or the proprietor in the case of proprietary firm or karta in case of Hindu Undivided Family as the case may be; (ii) any partner in case of a partnership firm; (iii) a person authorized by the Board of Directors in case of a limited company; (iv) in other cases, a person authorized to sign the refund application by the entity. (d) The applicant shall file the refund claim along with the copies of bank realization certificate in respect of the services exported. (e) The refund claim shall be accompanied by a certificate in Annexure A-I, duly signed by the auditor (statutory or any other) certifying the correctness of refund claimed in respect of export of services. (f) The Assistant Commissioner or Deputy Commissioner to whom the application for refund is made may call for any document in case he has reason to believe that information provided in the refund claim is incorrect or insufficient and further enquiry needs to be ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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