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TMI Blog2022 (6) TMI 429X X X X Extracts X X X X X X X X Extracts X X X X ..... the denial of refund on the presumption of ab initio ineligibility will not stand and refund procedure cannot be claimed to be a substitute for recovery. The denial on these grounds is without authority of law. Denial owing to padding up of eligible CENVAT credit of earlier periods that had to be re-credited following rejection of refund claim to that extent - HELD THAT:- An assessee such as the appellant, manufacturing primarily for the international market, has little scope for utilization of CENVAT credit in the normal course of discharge of duty liability. It is not the case of Revenue that the appellant had cleared goods domestically on payment of duty and was, through the refund route, attempting to recover the same; there is a certain lack of logic too in that. Any remnant by application of formula, and its precise intendment, can trace its origin to input lying unutilized or input service yet to be utilized for manufacture. Its utilization in some subsequent period can be reflected only by restoration of the rejected portion of a claim for refund. The restoration is permitted by law and the availment suffices to entitle inclusion for apportionment towards export of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endering of output service and the impossibility of segregation for one-to-one correlation requires such computation of attribution. 3. It is not on record that appellants were ineligible for any part of the credit so accumulated which would have to erased only by recourse to rule 14 of CENVAT Credit Rules, 2004. However, it has been argued by Learned Authorized Representative that refund claimed for July 2016 to September 2016 was restricted for two reasons, viz., revision in export turnover as accepted by the assessee and non-acceptability of some invoices which precludes a plea for revision of turnover at this stage for which the decision of the Hon ble Supreme Court in ITC Ltd v. Commissioner of Central Excise, Kolkata-IV [2019-TIOL-418-SC-CUS-LB] barring refund, except in circumstances of assessment having been successfully challenged, has been cited. 4. In the light of such complicated submissions, it is necessary to peruse the reasons for denial of refund of ₹ 30,99,939, ₹ 3,28,912 and ₹ 8,62,618, for the three periods. The claims for the first quarter and third quarter of 2016-17 were held as ineligible to the extent of ₹ 29,89,366 and ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of 2016 was ₹ 16,77,42,012 against the ₹ 15,64,13,273 deployed in the computation. The sanctioning authority has not adduced credible reasons for such revision and, therefore, the entitlement must be based on turnover declared in the statutory returns. It is difficult to conjecture even the remotest of link with circumstances in which the decision of the Hon ble Supreme Court in re ITC Ltd, which was concerned with refund of duties claimed to have been collected in excess, had been rendered. In seeking to monetize accumulated credit which is a privilege, as it were, available to exporters, there is no plea of wrongful levy of tax/duty from the provider of input service/supplier of input; the prerequisite of challenge to assessment has nothing to do with computation of export turnover which is solely a reflection of record. Denial of claim for ₹ 2,25,635 was incorrect. Denial of claim for mismatch is also not acceptable as appellant has offered justification for the truncation insofar as CENVAT credit account is concerned. 8. All that now remains is the challenge to denial owing to padding up of eligible CENVAT credit of earlier periods that had to be re-cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the correct approach for citing as binding precedent. In re Decos Software Development P Ltd, the line has been clearly drawn that credit availed during the pertinent quarter alone would constitute net CENVAT credit and it is not the case of Revenue that, in the present dispute, the credit, even if originally availed in another quarter, was not eligible for restoration, to the extent of rejection, after such rejection. 10. The determination in re Spiderlogic India Pvt Ltd that 6. From the reading of the above Rule, it can be seen that for the purpose of refund, the net cenvat credit means the total cenvat credit availed on inputs and input services by the manufacturer or output service provider reduced by the amount reversed in terms of sub- rule 5 (c) of Rule 3, during the relevant period. In the facts of the present case, there is no dispute that the credit of ₹ 231, 688/- was availed by appellants during the relevant period April 2013 to June 2013 under the authority of clause (i) of paragraph 2 of notification 27/12-CE (NT). Therefore this amount of ₹ 231, 688/- is nothing but the credit availed during the relevant quarter. Therefore, this amount must be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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