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TMI Blog2019 (10) TMI 1148X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 and Rule 9 of Cenvat Credit Rules, the appellant has filed all the necessary documents for claiming the cenvat credit viz. invoices, books of accounts, cenvat credit register which are required as per the various Rules and the Notification to claim cenvat credit but inadvertently he has failed to disclose the same in the ST-3 return which is only a procedural infraction. Under the Notification as well as under the Rule, it has not been categorically provided that non-disclosure of cenvat credit in the ST-3 return will disentitle the assessee from claiming the cenvat credit if he is otherwise entitled to. Further, the cenvat credit is a beneficial legislation and it should be construed liberally so as to upheld the letter and spirit of su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08 35,41,988 35,41,988 Order-in-Appeal No. 119 to 1 21/2019 dt. April 10, 2019 2 ST/20668/2019-SM ST/20668/2019-SM Aug' 08 - Mar'09 20,28,897 20,28,897 For the sake of convenience, the facts of Appeal No. ST/20667/2019 are taken. Appellant is a private limited company and is a SEZ unit and is registered as a STPI unit with Software Technologies Park of India and is engaged in the export of Information Technology Software Service, Business Support Service and Consulting Engineering Service to its group company Target Corporation, USA. In order to provide the output service, the appellant received and consumed various input services and paid service tax on such input services and thereafter availed cenvat credit of service tax paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Eighty Eight only) in one appeal and ₹ 20,28,897/- (Rupees Twenty Lakhs Twenty Eight Thousand Eight Hundred and Ninety Seven only) in another appeal for the period August 2008 to March 2009. Hence the present appeals. 2. Heard both the parties and perused the records. 3. Learned consultant appearing for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law and the evidence produced. He further submitted that the Commissioner (Appeals) has rejected the appeal only on the ground that the appellant has not availed cenvat credit amounting to ₹ 35,41,988/- (Rupees Thirty Five Lakhs Forty One Thousand Nine Hundred and Eighty Eight o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appendix to the Notification. The learned consultant referred to the conditions set out in appendix to the Notification and submitted that he has complied with all the conditions set out in the appendix to the Notification and accordingly is eligible for refund of cenvat credit for the impugned period. The learned consultant also referred to Rule 4 of the Cenvat Credit Rules which prescribes conditions for allowing cenvat credit and also referred to Rule 9 which prescribes documents and the other conditions for filing the cenvat credit. He also submitted that as per the Service Tax Rules and Cenvat Credit Rules, and the Notification 5/2006, nowhere it is mentioned that if the credit is not shown in the ST-3 return, the assessee is not enti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso submitted that the Cenvat Credit Rules which are beneficial in nature should be construed liberally so as to upheld the letter and spirit of such beneficial legislation. Learned consultant also demanded interest for the delay in sanctioning the refund. 4. On the other hand the learned AR defended the impugned order and submitted that ST-3 return is a very vital document and if the appellant has not disclosed the cenvat credit in the ST-3 return, then it is a suppression of material information and therefore cenvat credit has rightly been denied by both the authorities. 5. After considering the submissions of both the parties and perusal of the material on record, I find that the only ground for which refund has been rejected is that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-disclosure of the cenvat credit in ST-3 return is not legally sustainable and therefore, I set aside the rejection of refund on this ground. Further I find that the Commissioner (Appeals) in the impugned order has observed that the appellants have not submitted any documents to prove their contention that they have rightly availed the cenvat credit. It appears that both the authorities have not examined all the documents which have been filed by the appellant in support of their refund claim. In view of this, I set aside the impugned order and remand the matter back to the original authority to examine the refund claim on the basis of other documents filed by the appellant. Accordingly, both the appeals are allowed by way of remand to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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