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TMI Blog2022 (12) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... e erased from the credit account and, thus, not utilised even temporarily once monetization has been sought. Ideally, credit should be reversed as and when export takes place; however, with eligibility for refund arising only upon receipt of proceeds of export and the scheme having provided for filing of claim within a year thereafter, the dilution of ideal by shift to the quarter in which the claim is preferred is acceptable approximation. Therefore, the submission of the appellant would meet the test of sufficiency only by evincing continuous availability of such balance from the date of filing of the claim for refund till the date on which the opening balance reflected write-off of the entire credit as claimed by them - the appellant is, squarely and singularly, responsible for failure to furnish proof of the required availability of credit till the date of write off and, in the absence of any such evidence even at this stage of appeal or even assurance of being ready and willing to do so, there is no scope for further ascertainment. The decision of the Tribunal in SILICON IMAGE INDIA RESEARCH DEVELOPMENT PVT. LTD. AND ORS. VERSUS CCE ST, HYDERABAD-IV AND ORS. [ 2017 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,18,655 also rejected. 2. It would appear from the records that the appellant was not aggrieved by the curtailment of credit available for monetizing but only by the rejection of the truncated eligibility; the consummation of the proceedings in appeal thereafter, uncontested by both sides, with order of remand to the original authority for re-computation of the refund amount was followed up, strangely enough, with a fresh claim for the restricted amount on 11th October 2018 instead of leaving it to the original authority to restore the application of 2016 and 2017 for fresh consideration. 3. In response to query thereafter about compliance with condition of debit in CENVAT credit account, appellant herein intimated that the entire balance of credit, as on 1st April 2016, had been written off, as evidenced by the return for the first half of 2016-17 and, in particular, by the closing balance and opening balance respectively, for asserting that to be substantive compliance. The sanctioning authority, taking note of the several conditions in notification no. 27/2012/CE (NT) dated 18th June 2012 for operationalizing monetisation of eligible credit under rule 5 of CENVAT Credit R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd no. PK/207, 316, 315, 215, 314, 313, 214, 212, 211, 213/ME/2017 of Commissioner of Service Tax (Appeals), Mumbai-II] thus nullifying the relevance of the finding in the impugned order. Learned Authorised Representative drew our attention to the specifics of the several conditions subject to which only the refund of credit is to be released under rule 5 of CENVAT Credit Rules, 2004. 6. In the light of the decisions of the Tribunal as cited by Learned Counsel, it would appear that the mere failure to debit the amount, claimed as refund, in the CENVAT credit account, if rectified thereafter, is not fatal to the sanction. Nevertheless, the specifying of such condition in the impugned notification for the scheme of monetisation of accumulated credit to which exporters, of goods and services, are entitled is not merely academic but designed with the particular objective of ensuring that refund does not confer undue benefit has, nonetheless, not gone unnoticed in these decisions and to which we shall refer presently. It is internationally acknowledged that domestic taxes are not to be carried beyond the domestic territory and tax administration systems provide for neutralisation in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods and services simultaneously, may submit two refund claims one in respect of course exported and other in respect of the export of services every quarter. 6.1 In the instant case, I find that the appellant had exported the goods and claimed refund of input services which are used in the process of manufacturing the exported goods. Further, the appellant also claims that they have claim refund of Cenvat availed on input services used for export of output services i.e. bagging services. From this it is very clear that the appellant has filed single refund claim combining the details with respect of export of goods and services. Further, as claimed by the appellant the appellant filed refund under Rule 5 of Cenvat Credit Rules,2004 read with Notification No.27/2012-CE(NT) dated 18.06.2012, majorly for the input services used for the manufacture of excisable goods as approx. 78% of the goods manufactured and removed from the factory are exported and export of services only accounts for approx. 0.20% of export of goods. 6.4 Further, Notification No.27/2012-CE(NT) dated 18.06.2012 allows the manufacturer as well as provider of output service to claim refund under Rule 5 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, 2004. The refund cannot be claimed without debiting the amount. However, in the present case, I find that the appellant has submitted the copy of Cenvat register and the adjudicating authority to verify the proof of debit entry before sanctioning the refund claim. Held Accordingly. 9. From the context of the remand order on non-conformity with the pre-requisites of export of service in Service Tax Rules, 1994 as held, initially, by the original authority, we take note that the first appellate authority had merely held the finding of non-conformity to be incorrect insofar as the service is concerned. At the same time, it was also held that the applicant had filed a single claim for refund even as the scheme of monetisation, in rule 5 of CENVAT Credit Rules, 2004, prescribed separate consideration for export of goods and export of services. The setting aside of the initial order of rejection for erroneous consideration of one particular aspect is not, in our view, to be construed as approval of the validity of the entirety of claim as filed by applicant. It is but natural that the applicant interprets the remand order in a manner suited to them and as favouring them; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, with eligibility for refund arising only upon receipt of proceeds of export and the scheme having provided for filing of claim within a year thereafter, the dilution of ideal by shift to the quarter in which the claim is preferred is acceptable approximation. Therefore, the submission of the appellant would meet the test of sufficiency only by evincing continuous availability of such balance from the date of filing of the claim for refund till the date on which the opening balance reflected write-off of the entire credit as claimed by them. That such credit existed for the whole of this duration is not deducible from write-off and no amount of adamant insistence of such presumption can substitute for such evidence; the lower authorities cannot be held to have been perverse in implementation of the order of remand. The appellant is, squarely and singularly, responsible for failure to furnish proof of the required availability of credit till the date of write off and, in the absence of any such evidence even at this stage of appeal or even assurance of being ready and willing to do so, there is no scope for further ascertainment. 12. The decision of the Tribunal in re Silico ..... X X X X Extracts X X X X X X X X Extracts X X X X
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