2011 (6) TMI 307 - AT - Central Excise

Refund claim - Assessee did not avail the benefit of notification No. 10/03 CE, They exported the SS utensils and claimed refund of Cenvat credit accumulated in view of export made of the SS utensils - refund claim was rejected by the original authority holding that if the respondents have not availed exemption on SS Patties and SS pattas captively consumed by them, they could have utilised the credit and there would not have been any accumulation of credit - no valid reason have been adduced to interfere with the order of the Commissioner (Appeals), appeal by the department is rejected.

Summary

Issues:
1. Refund claim rejection by original authority.
2. Availing benefit of notification No. 10/03 CE.
3. Eligibility of exemption notification 67/1995.
4. Identical issue previously decided in Appeal No. 81/2005.
5. Dispute regarding availing exemption under notification No. 67/95.

Analysis:
The case involved an appeal by the department against the order of the Commissioner (Appeals) rejecting a refund claim of Rs.37,45,820 by the respondent, who manufactured SS utensils falling under Chapter Heading No. 7323.90. The respondent exported the SS utensils and claimed a refund of Cenvat credit accumulated due to the export. The original authority rejected the refund claim, stating that if the respondents had not availed exemption on certain items, they could have used the credit to avoid credit accumulation. However, the Commissioner (Appeals) set aside the original authority's order, leading to the department's appeal.

The department argued that the Tribunal should consider the eligibility of exemption notification 67/1995, as it was not discussed in a previous order related to the same respondent. The advocate for the respondent contended that the issue in the present case was identical to the one decided in a previous appeal in their favor. The Tribunal noted that the same issue had been decided in favor of the respondent in a previous order related to an earlier period. The Tribunal found no valid reason to interfere with the Commissioner (Appeals) order, as the department's argument regarding the alleged wrongful availing of the exemption under notification No. 67/95 was not the subject of the current proceedings.

Ultimately, the Tribunal rejected the department's appeal, citing the previous decision in favor of the respondent and the lack of grounds to overturn the Commissioner (Appeals) order. The Tribunal held that the dispute regarding the alleged wrongful availing of the exemption under notification No. 67/95 could not be raised in the present proceedings, as it was not the basis for duty demand by the department.