2011 (2) TMI 216 - HC - Central Excise

Classification - Cenvat credit - Demand - Refund - it was due to the pendency of the appeal that the amount was not refunded - A writ in the nature of mandamus is issued directing the third respondent to refund the amount of Rs.5,05,759/- along with interest at the rate of 6% interest per annum with effect from 07.12.2009 till the date of payment - Decided in the favour of the assessee

Summary

Issues:
1. Availing of Cenvat credit on inputs used for job work
2. Refund of amount under Section 11BB of the Central Excise Act

Analysis:
1. The petitioner firm, engaged in manufacturing wear resistance and corrosion resistance parts, availed Cenvat credit on inputs like Stellite powder and Deloro 50 for their job work. Dispute arose when officers disputed this credit during a visit to the factory. The petitioner contested the show cause notice and appealed before the Commissioner of Central Excise (Appeals), who ruled in favor of the petitioner, allowing the Cenvat credit on inputs used in job work. The Revenue challenged this order before the Tribunal without obtaining a stay. The petitioner sought a refund of the amount deposited, claiming it was the duty of the respondents to refund it within three months under Section 11BB of the Central Excise Act.

2. Section 11BB of the Central Excise Act imposes a statutory duty on the respondents to refund the amount within three months. The petitioner cited a precedent from the Delhi High Court, Commissioner of Central Excise Vs. Modern Industrial Enterprises, emphasizing that the pendency of an appeal by the revenue cannot be a ground to withhold the amount due to the assessee. The Court noted that the statutory period for refund had expired, and the respondents failed to refund the amount despite the order of the Commissioner of Central Excise (Appeals). Consequently, the Court allowed the writ petition, issuing a mandamus for the refund of the amount along with 6% interest per annum from a specified date within three months of the order.

This detailed analysis covers the issues of availing Cenvat credit on inputs for job work and the refund of the amount under Section 11BB of the Central Excise Act as addressed in the judgment by the Madras High Court.