[2016] 71 taxmann.com 293 (Mumbai-CESTAT) Decos Software Development Pvt. Ltd. vs. Commissioner of Central Excise, Customs & Service Tax, Pune-III

Facts:
While filing ST-3 return, appellant mistakenly showed CENVAT credit in respect of certain invoices against April-June 2012 period although such credits were actually availed during July 2012–September 2012. The credit pertained to invoices dated prior to July 2012. By the time appellant realized this mistake in ST-3 return, time limit for filing revised return for “April-September 2012” had elapsed. However, from CENVAT account details maintained by the appellant, it was amply clear that the CENVAT credit (mistakenly shown in ST-3) was actually availed by the appellant during “July 2012-September 2012”. Accordingly, while filing refund claim for period “July 2012-September 2012” in terms of Rule 5 of CCR, 2004, the CENVAT credit in respect of the said invoices issued prior to 01/07/2012 was also included in “Net Cenvat Credit”. In spite of appellant informing the authorities about the mistake in filing ST-3 returns, refund claim to the extent of above component of CENVAT credit, was rejected by the revenue on the ground that invoices pertained to period prior to 01/07/2012 and appellant declared the same in ST-3 return for period “April 2012-June 2012” and ST-3 return, being statutory return should be taken as correct position of availment of CENVAT credit and in absence of revised return, the original return cannot be ignored.

Held:
Referring to Rule 5 of CENVAT Credit Rules, the Tribunal held that while deciding the claim for July – September 2012, whatever CENVAT credit is ‘availed’ in the quarter July to September, 2012 shall be taken as Net CENVAT credit. If the CENVAT credit is availed in any period prior to 01/07/2012, the same cannot be taken into Net CENVAT credit for the quarter July to September, 2012. In other words, even if services which were received and ENVAT credit taken prior to 01/07/2012, were used for export of service for the quarter July to September 2012, the same cannot be included in the net credit for the quarter July to September 2012. While arriving at such conclusion, Tribunal placed reliance on decision of Gujarat High Court in case of Commissioner vs. Man Industries (I) Ltd. 2015 (321) ELT 442 wherein it was held that when inputs were received in different period and credit was availed in subsequent period, the relevant period would be the one in which credit was availed and not the period in which input/input services were received.
As regards the facts of the case, Tribunal held that, just because the appellant has filed ST-3 return and shown the CENVAT credit availed in the April to June 2012 quarter cannot be the sole basis to conclude that the CENVAT credit was availed in that quarter. Appellant made categorical statement in their submissions that the CENVAT credit shown in the quarter April to June, 2012 is due to clerical error and in support of this statement they also produced the CENVAT credit account maintained on the computer which shows that the CENVAT credit was availed in the quarter July 2012 to September, 2012. Tribunal therefore remanded the matter with a specific direction that appellant’s claim be verified on the basis of CENVAT credit account produced by them as well as any other corroborative evidences, if required and if it is found that the CENVAT credit was availed in July to September 2012, even though on the invoices pertaining to the period prior to 01/07/2012, the refund shall be admissible.