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TMI Blog2022 (6) TMI 675X X X X Extracts X X X X X X X X Extracts X X X X ..... has become the sole reason for rejection of the claim. The issue is no more res-integra. Hon ble Apex Court in the case of CCE VERSUS M/S HARI CHAND SHRI GOPAL [ 2010 (11) TMI 13 - SUPREME COURT ] has held that a mere attempted compliance may not be sufficient, but actual compliance of those factors which are considered as essential. In the case of BNP Paribas Global Securities Operations Pvt. Ltd. Vs. the Assistant Commissioner of GST and Central Excise [ 2021 (4) TMI 783 - MADRAS HIGH COURT] it has been held that for the transaction pertaining to the period prior to 30.6.2017, the assessee since could not file the ST 3 return post July, 2017, any reversal/ credit shown in his private accounts/ the Books of accounts become the sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs.18,38,069/- which was rejected. The matter was remanded back to the adjudicating authority with the direction to pass a speaking order following the principle of natural justice. Pursuant thereto that the Order-in-Original dated 10th July, 2020 was passed vide which refund claim of Rs.3,40,399/- was rejected and claim of Rs.14,97,670/- was sanctioned. No appeal was filed by the appellant against the said rejection. However, Department challenged the sanction of the refund of Rs.14,97,670. The said order was initially reviewed vide Review Order No.16/2019-20 dated 13.10.2020. Pursuant thereto the Department filed an appeal before Commissioner (Appeals), which has been decided in favour of the Department. Being aggrieved, the appellant i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould have been debited by the assessee from his Cenvat Credit account as maintained under Cenvat Credit Rule. Commissioner (Appeals) has observed that there is no condition in the Notification empowering the dispensation of said procedural compliance and the said finding has become the sole reason for rejection of the claim. 7. From the case law as brought to the notice by the ld. Counsel for the appellant, it is clear that he issue is no more res-integra. Hon ble Apex Court in the case of Commissioner of Central Excise, New Delhi vs. M/s. Hari Chand Shri Gopal Others in Civil Appeal Nos.1878-1880 of 2004 2010 (260) ELT page 3 (SC) has held as follows:- The doctrine of substantial compliance is a judicial invention, equitable i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is insisted, where mandatory and directory requirements are lumped together, for in such a case, if mandatory requirements are complied with, it will be proper to say that the enactment has been substantially complied with notwithstanding the non- compliance of directory requirements. In cases where substantial compliance has been found, there has been actual compliance with the statute, albeit procedurally faulty. The doctrine of substantial compliance seeks to preserve the need to comply strictly with the conditions or requirements that are important to invoke a tax or duty exemption and to forgive non-compliance for either unimportant and tangential requirements or requirements that are so confusingly or incorrectly written that an ear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the assessee since could not file the ST 3 return post July, 2017, any reversal/ credit shown in his private accounts/ the Books of accounts become the statutory documents as admissible in evidence. Further perusal of this decision shows that the facts of the said case were identical to that of present one in the terms that the appellants in both the cases are exporter of the services. Hon'ble High Court had held that refund of Cenvat Credit to such an exporter of services in terms of Rule 5 of Cenvat Credit Rules, 2004 read with Notification No.. 27/2012 date 18.6.2012 is the denial of legitimate export incentive coming to the exporter of services. Same cannot be denied merely because of intervening changes. Commissioner (Appeals) ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the refund claim in the CENVAT credit balance. Books of accounts. The only option was to show its reversal in the Such reversal still amounts to non availment of Credit and refund whereof remains eligible. I draw my support from the decisions in the case of Commissioner of Service Tax, NOIDA vs M/s. Kiwi Technologies India Pvt Ltd. [2018 (2) TMI 689 CESTAT, Allahabad]. Tribunal Bangalore also in the case of M/s. Thorogood Associates India Pvt Ltd. vs CCT, Bangalore, Karnataka (supra) has held as under: 6. Further, I find that when the appellant filed the refund claim in February 2018, by that time, the erstwhile Service Tax Regime was repealed with GST Regime and the refund claim was filed under Rule 5 of CENVAT Credit Rules, 2004 and t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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