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TMI Blog2022 (3) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... n Rule 3 and 4 of the said Rules, then the same could have been denied by following the procedure as laid down in Rule 14. The so availed erroneous credit cannot be the subject matter of proceedings of Refund in terms of Rule 5 of the CENVAT Credit Rules, 2004 - Admittedly and undisputedly no proceedings for denial of any CENVAT Credit as claimed by the appellants, for encashment of which they have filed these refund claims have been initiated by the revenue. Without denying the CENVAT Credit taken/ availed by the appellant in their book of accounts during the relevant period (quarter) by way of initiating proceedings against the appellant in terms of Rule 14, revenue could not have altered the quantum of Net CENVAT Credit availed during the said quarter, and deny the encashment of that amount of the CENVAT Credit which is due as per the Rule 5. It is now well settled principle of law that where a statute provides for a thing to be done in a particular manner, then it has to be done in that manner, and in no other manner. It was held in the case of ADP PRIVATE LIMITED VERSUS COMMISSIONER OF SERVICE TAX, HYDERABAD-II [ 2020 (1) TMI 101 - CESTAT HYDERABAD] that the rejectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lower authority in respect of these services and accordingly uphold the denial of credit to that extent. Held Accordingly (ii) Address not in ST-2 (₹ 1,16,000/-) The appellant contended that earlier the name of the company was M/s Aries India Pvt. Ltd. and the name of changed to M/s Aries Technology Group Pvt. Ltd. and in their support submitted ST-2 certificate and certificate of incorporation pursuant to change issued by Ministry of Corporate Affairs. On the other hand, the adjudicating authority rejected the amount on the grounds that address not in the name of the claimant. Based on the records placed before me, it is clear that ST-2 was amended on 23.08.2016 and the original ST-2 contained the name of the appellant as M/s Aries India Pvt. Ltd. The credit availed on the impugned Invoice No. 702/16-17 dated 1.07.2016 raised by M/s Modern Sixteen Cine Laboratory Pvt. Ltd is admissible and hence allowed. Held Accordingly (iii) Address not in the name of the claimant (₹ 6501/-) the adjudicating authority rejected the amount on the grounds that address not in the name of the claimant. On the other hand the appellant has not contended the claim in respect of in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29.09.2017 2.2 After consideration of the refund claim the Assistant Commissioner allowed the refund claim modifying the same, stating as follows: I hereby sanction an amount of ₹ 51,56,107/- (Rupees Fifty One Lakhs Fifty Six Thousand One Hundred and Seven Only) and reject the an amount of ₹ 4,53,533/- (Rupees Four Lakhs Fifty Three Thousand Five Hundred and Thirty Three Only) under Section 11B of the Central Excise Act, 1944 as made applicable to Service Tax vide Section 83 of the Finance Act, 1994. 2.3 While deciding the refund claim filed under Rule 5 of Cenvat Credit Rules, 2004, adjudicating authority has vide para 8 of his order concluded In view of the above, therefore, I disallow the CENVAT credit equal to amount of ₹ 4,53,533/-. 2.4 Against the order of the Assistant Commissioner, appellant filed the appeal before Commissioner (Appeal) which was decided as per the impugned order referred in para 1 above. 2.5 Aggrieved by the impugned order appellants have filed this appeal. 3.1 I have heard Shri Vasant Bhat, Chartered Accountant for the Appellant and Shri Onil Shivadikar, Assistant Commissioner, authorized Representat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cleared during the relevant period and exported without payment of Central Excise duty under bond or letter of undertaking; (D) Export turnover of services means the value of the export service calculated in the following manner, namely:- Export turnover of services = payments received during the relevant period for export services + export services whose provision has been completed for which payment had been received in advance in any period prior to the relevant period advances received for export services for which the provision of service has not been completed during the relevant period; (E) Total turnover means sum total of the value of (a) all excisable goods cleared during the relevant period including exempted goods, dutiable goods and excisable goods exported; (b) export turnover of services determined in terms of clause (D) of sub rule (1) above and the value of all other services, during the relevant period; and (c) all inputs removed as such under sub-rule (5) of rule 3 against an invoice, during the period for which the claim is filed. (2) This rule shall apply to exports made on or after the 1 st April, 2012: Provided tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neously refunded, the same shall be recovered along with interest from the manufacturer or the provider of output service, as the case may be, and the provisions of sections 11A and 11AA of the Excise Act or sections 73 and 75 of the Finance Act, 1994, as the case may be, shall apply mutatis mutandis for effecting such recoveries. 4.7 From the reading of the provisions of Rule 14 it is quite evident that if for a moment it is accepted that certain credit were wrongly or erroneously taken by the appellant contrary to the provisions contained in Rule 3 and 4 of the said Rules, then the same could have been denied by following the procedure as laid down in Rule 14. The so availed erroneous credit cannot be the subject matter of proceedings of Refund in terms of Rule 5 of the CENVAT Credit Rules, 2004. In these cases even if the refund claim is denied on the ground as stated by the impugned order then the same will be credited back to the CENVAT Account of the appellants and if possible appellant can utilize the same for payment of goods/ services cleared by them subsequently. Admittedly and undisputedly no proceedings for denial of any CENVAT Credit as claimed by the appellants, f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to have been prohibited. That proposition of law first was stated in Taylor v. Taylor (1876) 1 Ch. D426 and adopted later by the Judicial Committee in Nazir Ahmed v. King Emperor AIR 1936 PC 253 and by this Court in a series of judgments including those in Rao Shiv Bahadur Singh Anr. v. State of Vindhya Pradesh AIR 1954 SC 322, State of Uttar Pradesh v. Singhara Singh and Ors. AIR 1964 SC 358, Chandra Kishore Jha v. Mahavir Prasad Ors. 1999 (8) SCC 266, Dhananjaya Reddy v. State of Karnataka 2001 (4) SCC 9 and Gujarat Urja Vikas Nigam Ltd. V. Essar Power Ltld. 2008 (4) SCC 755. The principle stated in the above decisions applies to the cases at hand not because there is any specific procedure that is prescribed by the Statute for grant of approval but because if the approval could be granted by anyone in the police hierarchy the provision specifying the authority for grant of such approval might as well not have been enacted. 4.12 In case of Qualcomm India Pvt Ltd [2020 (43) GSTL 402 (T-Hyd)], Hyderabad bench has expressed same view stating as follows: 6 . Rule 3 of the Cenvat Credit Rules, 2004 is the enabling provision, which entitles a manufacturer of excisabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the benefit of interest for non-consideration of the refund application within the stipulated time-frame prescribed under the statute. However, on perusal of the case records, more specifically the grounds of appeal annexed to the appeal memorandum, we find that the assessee-appellant has not raised any plea on the issue of payment of interest therein. Since such issue is not arising out of the appeal proceedings before the Tribunal, it will not be appropriate to consider such plea at this juncture for a decision as emphasized by the Learned Advocate for the appellant. 4.13 In case of ADF Pvt Ltd [2020 (40) GSTL 349 (T-Hyd)], again Hyderabad bench, has observed as follows: 6 . We have considered the arguments of the Learned AR and perused the records. It is a well settled principle that availment of Cenvat credit, its utilisation and its refund are different aspects dealt with under CCR, 2004. Rule 5 of Cenvat Credit Rules, 2004 provides for refund of Cenvat credit in respect of goods/services exported out of India. Nowhere in this Rule 5, is there a provision to determine whether availment of Cenvat credit in the first place is correct or otherwise. There is a separate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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