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TMI Blog2025 (2) TMI 743X X X X Extracts X X X X X X X X Extracts X X X X ..... efund of credit. In exercise of powers conferred under Rule 5(1), Notification No.27/2012-CE(N.T.) dated 18.06.2012 has been issued specifying the safeguards, conditions and limitations and also the procedure for filing the refund claim - clause 2(g) has to be read as it is without any addition or subtraction of words and clause 2(g) cannot be interpreted on any presumption or assumption that balance has to be considered as the amount shown as closing balance in ST-3 return. The interpretation to the contrary placed in the impugned order is therefore clearly erroneous and is not flowing from a plain reading of clause 2(g) of the notification - clearly clause 2(g) of the notification has been incorrectly interpreted in the impugned order and rejection of refund claim on this ground is not sustainable. Both the parties are ad-idem to the fact that no objection has been raised by the Revenue to the revised return for the subsequent period Oct'2015 to March'2106 showing the same opening balance as disclosed by the Appellant in corrigendum for the period April'2015 to Sep'2015 - It is not disputed before me that by the time the Appellant realised the mistake, the time period for revis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces used for providing output services. While furnishing ST-3 return for the period from April'15 to Sep'15, the Appellant could not disclose the amount of CENVAT credit in the return. The Appellant claims that the said mistake was realised only after expiry of the time provided for revising the return and in these circumstances a letter dated 13.05.2016 was submitted on 18.05.2016 as a corrigendum to the ST-3 return disclosing the opening balance of CENVAT credit, credit availed and closing balance of CENVAT credit. It is the case of the Appellant that since the time period for revising return for the subsequent period i.e. October'2015 to March'2016 had not expired, hence the Appellant revised the ST-3 return for the said period disclosing the correct figures of opening balance of CENVAT credit, credit availed and closing balance of CENVAT credit. The Appellant further claims that since the services provided qualified as export of services, hence on 20.05.2016 the Appellant filed claim for refund of accumulated credit of Rs.19,79,328/- for the period April'2015 to June'2015. Along with the refund claim, the Appellant also submitted certificate issued by the Chartered Accountant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt during the period April'2015 to June'2015. 7. Aggrieved with the impugned order, the Appellant has preferred the present appeal. We have heard ld. counsel for the Appellant Shri Nishant Mishra and also ld. A.R. for the Revenue. 8. Ld. counsel for the Appellant has made the following submissions:- (i) CENVAT credit was duly availed in the account books, which fact has not been disputed by the lower authorities; (ii) ST-3 return has been prescribed under the Service Tax Rules, 1994 and not under the CENVAT Credit Rules, 2004 and mere non-disclosure of opening and closing balance in ST-3 return cannot lead to the presumption that CENVAT credit was not availed by the Appellant; (iii) Non-disclosure of credit balances in the ST-3 return for the period April'2015 to Sep'2015 was a bona fide mistake, which was rectified by the appellant immediately when the Appellant became aware of the same, by filing corrigendum on 18.05.2016, as time-period for revision of return had expired and also that the Appellant revised return for the subsequent period Oct'2015 to March'2016 disclosing the correct balances; (iv) Having not objected to the corrigendum and revised return for the subse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specifies the safeguards, conditions and limitations for claiming refund, the procedure for claiming refund has been specified under paragraph 3. On perusing the safeguards, conditions and limitations specified in paragraph 2, I find that there is nothing in the said safeguards, conditions and limitations so as to make disclosure of CENVAT credit balances in ST-3 return as a condition precedent for claiming refund. The procedure specified in paragraph 3 of the notification also merely specifies the procedure and the documents to be enclosed along with refund claim and nowhere requires disclosure of credit in ST-3 return. 13. So far as clause 2(g) relied in the impugned order, the same is reproduced hereunder:- (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 refund claim, whichever is less. A plain reading of the aforesaid clause shows that the amount of refund claim is limited to that lying in balance at the end of the quarter. It nowhere provides that the balance has to be considered as the amount shown as closing balance in ST-3 return. Rules regarding th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial sense. Unless defined in the statute itself, the words and expressions in a taxing statute have to be construed in the sense in which the persons dealing with them understand, that is, as per the trade understanding, commercial and technical practice and usage. In view of the above, it is clear that clause 2(g) has to be read as it is without any addition or subtraction of words and clause 2(g) cannot be interpreted on any presumption or assumption that balance has to be considered as the amount shown as closing balance in ST-3 return. The interpretation to the contrary placed in the impugned order is therefore clearly erroneous and is not flowing from a plain reading of clause 2(g) of the notification. 14. The view taken above finds support from the order of coordinate bench of this Tribunal in Vaibhav Global Limited vs. Commissioner, CGST [Final Order No.50041/2022 dated 18.01.2022 passed in Service Tax Appeal No.51118 of 2019-SM] reported in 2022 SCC OnLine CESTAT 2062. In the said case also, incorrect figures of credit were disclosed in ER-2 return, discrepancy was noted only after expiry of time period for revising the return, the discrepancy was brought to the notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eturn for the subsequent period Oct'2015 to March'2106 showing the same opening balance as disclosed by the Appellant in corrigendum for the period April'2015 to Sep'2015. Now once the said return and also the corrigendum has not been disputed and rejected by the Revenue, then adverse inference cannot be drawn merely because the Appellant could not revise the return for period April'2015 to Sep'2015 within the prescribed time period and corrected the mistake immediately upon noticing the mistake. It is not disputed before me that by the time the Appellant realised the mistake, the time period for revising the return got expired and therefore the Appellant cannot be expected to perform an impossible task. Thus, I find no reasonable reason for not extending the benefit of the corrigendum to the Appellant. 16. The other finding in the impugned order that return for the subsequent period Oct'2015 to March'2016 initially filed on 12.04.2016 was revised on 28.05.2016 i.e. after filing of refund claim on 20.05.2016, also cannot be sustained, in view of paragraph 3 of the notification which requires the Assistant Commissioner or the Deputy Commissioner to not only call for the documents f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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