2015 (7) TMI 1133 - AT - Central Excise

Period of limitation - Refund claim - availment of Modvat Credit of Central Excise duty paid on inputs i.e. Grinding Media, used in manufacture of cement - appellant reversed the modvat credit amount pursuant to adjudication order in which it was held that grinding media is not an input and the same is a machinery item but in appeal to the Tribunal, it was held that grinding media is an input - Held that - there was no necessity for filing the fresh refund application by the appellant on 19.10.2011 with regard to the same refund amount, which was initially filed on 30.06.1994, which was returned by the Department on the ground that the Tribunal s order is the subject matter of dispute before the Hon ble High Court. Perusal of the Provisions of Section 11B ibid reveals that no provisions exist therein to return the refund application to the assessee. Since, the ground of filing refund application on 30.06.1994 is same in the application filed on 19.10.2011, in my considered view, application filed on 30.06.1994 should be constructed as proper application for the purpose of computation of limitation of time. Since, the initial application was filed within the statutory time frame, there is no delay in filing the subsequent application on 19.10.2011, which was in confirmation to the earlier application dated 30.06.1994, involving the same set of facts. - Decided in favour of appellant

Summary

Issues:
Refund claim rejection based on limitation.

Analysis:
The appellant, engaged in cement manufacturing, availed Modvat Credit on grinding media used as an input. The Department disputed this, claiming grinding media is machinery, not an input. The appellant reversed the credit per an adjudication order, but the Tribunal later allowed the appeal, confirming grinding media as an input. The appellant filed a refund application in 1994, which was returned due to ongoing disputes. After a favorable order in 2009, the appellant reapplied in 2011, deemed time-barred by authorities citing Section 11B of the Central Excise Act, 1944.

The Tribunal noted that the 2011 application was unnecessary as the 1994 application, returned due to disputes, should be considered the proper application for time limitation purposes. Since the initial application was within the statutory timeframe, the subsequent application in 2011, based on the same grounds, was not delayed. The Tribunal found no merit in the limitation-based rejection, setting aside the impugned order and allowing the appeal in favor of the appellant.