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TMI Blog2022 (3) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... vices exported. To accomplish this Government has provided for various schemes to zero rate the goods and services exported. 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 - 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 839/MII I/2015 05.10.2015 3,00,66,312/- 2 29.12 .2014 Jan 14 to Mar 14 1,59,19,662/- 26/14-15 28.03.2015 CD/36/MIII /2016 01.12.2015 1,20,16,397/- 3 29.09 .2015 Jul 14 to Sept 14 99,68,229/- 27/15-16 23.12.2015 CD/462/MII I/2016 29.06.2016 39,62,291/- 4 23.03 .2016 Oct 14 to Dec 14 1,41,53,240/- 08/15-16 24.06.2016 PK/189/MII I/2016 29.12.2016 1,01,61,321/- 5 31.03 .2016 Jan 15 to Mar 15 1,06,96,217/- 09/15-16 29.06.2016 PK/190/MII I/2016 16.01.2017 51,30,468/- 2.2 Aggrieved by the orders of Commissioner (Appeals), Appellant have preferred these appeals. 3.1 We have heard Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice provider for claiming the refund under Rule 5 [Aarvee Denims Exporters Ltd [2010 (17) STR 262 (T)] 3.2 Arguing for revenue learned authorized representative while re-iterating the findings recorded in the impugned order submits: Rule 5 of CENVAT Credit Rules, 2004 was amended in the year 2012, and was substituted by the new Rule. Also Notification No 27/2012-CE (NT) dated 18.06.2012 was issued superseding the earlier notification No 5/2006-CE (NT). Therefore the reliance placed by the appellant on the circular of 2010 and the decisions of the tribunal, which were in respect of earlier Rule 5 and Notification No 5/2006-CE (NT) is not justified and proper. Rule 5 read with Notification No 27/2012, mandatorily prescribe for filing of only refund claim per quarter as is evident from the use of word shall . It is settled principle of interpretation that use of word shall in a statue implies mandatory prescription as per the decisions below: Asiatic Oxygen Ltd [1992 (57) ELT 583 (Cal)} Malaysian Airlines [2010 (202) ELT 192 (Bom)] Reliance is also placed on the decisions as follows to support the case of revenue: Doaba Co-operative Sugar Mil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cluding exempted goods, dutiable goods and excisable goods exported; (b) export turnover of services determined in terms of clause (D) of subrule (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 that the refund may be claimed under this rule, as existing, prior to the commencement of the CENVAT Credit (Third Amendment) Rules, 2012, within a period of one year from such commencement: Provided further that no refund of credit shall be allowed if the manufacturer or provider of output service avails of drawback allowed under the Customs and Central Excise Duties and Service Tax Drawback Rules, 1995, or claims rebate of duty under the Central Excise Rules, 2002, in respect of such duty; or claims rebate of service tax under the Export of Services Rules, 2005 in respect of such tax. Explanation 1.- For the purposes of this rule,- {1) export service means a service which is provided as per the provisions of Expo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pose of computation of total turnover, the value of export services shall be determined in accordance with clause (D) of sub-rule (1) of rule 5 of the said rules. (f) for the value of all services other than export during the quarter, the time of provision of services shall be determined as per the provisions of the Point of Taxation Rules, 2011. (g) the amount of refund claimed shall not be more than the amount lying in balance at the end of quarter for which refund claim is being made or at the time of filing of the refund claim, whichever is less. (h) the amount that is claimed as refund under rule 5 of the said rules shall be debited by the claimant from his CENVAT credit account at the time of making the claim. (i) In case the amount of refund sanctioned is less than the amount of refund claimed, then the claimant may take back the credit of the difference between the amount claimed and amount sanctioned. 3. Procedure for filing the refund claim . - (a) The manufacturer or provider of output service, as the case may be, shall submit an application in Form A annexed to the notification, to the Assistant Commissioner of Central Excise or Deputy Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise, .. ... Sir, I/We have exported, the final products or output services during the Quarter and am/are claiming the refund of CENVAT Credit in terms of Rule 5 of the CENVAT Credit Rules, 2004 as per the details below : S. No. Description Amount in Rs. 1. Total value of the goods cleared for export and exported during the quarter. 2. Export turnover of the services determined in terms of Clause D of sub-rule (1) of rule 5. 3. Total CENVAT Credit taken on inputs and input services during the quarter. 4. Amount reversed in terms of sub-rule (5C) of rule 3 5. Net CENVAT Credit = (3) - (4) 6. Total value of all goods cleared during the quarter including exempted goods, dutiable goods and goods for export. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve not filed or will not file any other claim for refund under rule 5 of CENVAT Credit Rules, 2004, for the same quarter to which this claim relates. Date d d m m y y y y Signature of the Claimant .. .. . Name of the Claimant . Registration Number . Address of the Claimant . 4.0 Enclosures : (i) Copies of Customs Certified ARE-1 form along with the copies of shipping bill and bill of lading in case of the export of goods. (ii) Copies of the Bank Realization Certificates for the export of services. [refer 3(d)] (iii) Certificate in Annexure A-I from the Auditor (statutory or any other) certifying the correctness of refund claimed in respect of export of services. [refer 3(e)] 5.0 Refund Order No. Date dd mm yyyy The refund claim filed by Shri/Messrs _____has been scrutinized with the relevant Central Excise/ Service Tax records. The said refund claim has been examined with respect to relevant enclosures and has/has not been found in order. A refund of Rs. ________ (Rupees ________) is sanctioned/The refund claim filed is rejected. Assistant Commissioner or Deputy Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the invoices/ bills on which the CENVAT Credit has been taken and is claimed as refund are for earlier period and not for the quarter for which refund has been claimed. The credit of service tax paid by the appellants on reverse charge is not admissible to the appellant, as these services were provided outside and hence service tax was not payable. Therefore refund of this amount claimed as credit is not admissible 4.5 From the reading of Rule 5 as reproduced above it is providing for the refund of the accumulated CENVAT Credit in the books of account against the goods exported under Bond or letter of undertaking and the services exported. The basic principle which is being provided by the said Rule, is as per the avowed policy of the Government to reduce the prices of export so that they are internationally competitive. It is also imperative to note that no country will like to export the taxes leviable locally along with the goods and services exported. To accomplish this Government has provided for various schemes to zero rate the goods and services exported. 4.6 Rule 3 of the CENVAT Credit Scheme provides for the availment and utilization of the various duties and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m 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. 4.9 In the case of Chandra Kishore Jha vs. Mahavir Prasad, [1999 (8) SCC 266 ](para 12), a three Judges bench Hon ble Supreme Court has referred the said principle as follows It is a well-settled salutary principle that if 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. (See with advantage : Nazir Ahmad v. King Emperor, 63 Indian Appeals 372=AIR 1936 PC 253; Rao Shiv Bahadur Singh Anr. V. State of Vindhya Pradesh, 1954 SCR 1098 = AIR 1954 SC 322. State of Utter Pradesh v. Singhan Singh Ors., AIR 1964 SC 358 = (1964) 1 SCWR 57] 4.10 Hon ble Apex Court has similarly in case of Dhananjaya Reddy vs. State of Karnataka, [(2001) 4 SCC 9](para 22), stated the said principle as follows: Relying upon Nazir Ahmad's case and applying the principles laid down in Tay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dit available in the books of accounts. Thus, Rule 5 ibid provides for refund of accumulated Cenvat credit, subject to compliance of the procedures/guidelines laid down under the notifications issued thereunder. We find that the refund benefit was denied to the assessee-appellant on the sole ground that there was no nexus between the input services and the output service exported by the appellant. Further, in Revenue s appeal, it has been contended that certain disputed services are not conforming to the definition of input service provided under Rule 2(l) ibid. Insofar as taking of irregular Cenvat credit is concerned, Rule 14 ibid clearly mandates that in case of irregular availment of credit or its utilisation, such credit can be recovered from the assessee and for effecting the recoveries, the provisions of Section 11A of the Central Excise Act, 1944/Section 3 of the Finance Act, 1994 shall apply mutatis mutandis. It is an admitted fact on record that the department has not invoked the provisions of Rule 14 ibid for effecting recovery of the alleged irregular Cenvat credit availed by the assessee-appellant. Thus, under such circumstances, it can be said that taking of Cenvat cr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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