2013 (12) TMI 226 - HC - Central Excise

Maintainability of Appeal Held that - Four different appeals should have been preferred by the department and in such case each of the appeals would be for an amount lower than ₹ 10 lacs - In any case even if the amount of all four appeals is taken together, the total amount comes to ₹ 9,77,884/-, which is less than ₹ 10 lacs and that the appeal also does not fall in any of the exceptions. Deemed Export - Whether supplies to 100% EOU be treated as export for the purpose of cash refund of accumulated Cenvat credit under Rule 5 of CCR, 2004 Held that - The respondent has fairly stated that they will not insist upon cash refund - The respondent company has taken credit of the amount and intimation to that effect has been given to the Assistant Commissioner, Central Excise within time. Applicability of Limitation - Whether the time limit prescribed under Section 11B is applicable in the case of refund claim under Rule 5 of CCR, 2004- Held that - The amount involved in the appeal is less than ₹ 10 lacs and no question of constitutional validity of any provision of Act or Rule is involved nor any Notification/Instruction/Order or Circular has been held illegal or ultra vires, the appeal in view of the Instructions dated 17.8.2011 issued by the Central Board of Excise & Customs, Department of Revenue, Ministry of Finance is not required to be heard Decided against Appellant.

Summary

Issues:
1. Condonation of delay in filing the appeal.
2. Requirement of separate appeals for multiple adjudication orders.
3. Monetary limit for filing central excise appeal.
4. Eligibility of cash refund for deemed export.
5. Applicability of time limit for refund claims under Rule 5 of CCR, 2004.

Analysis:

1. The delay of 55 days in filing the appeal was condoned, and the appeal was given a regular number.

2. The respondent raised a preliminary objection that the department should have preferred four separate appeals for four different refund claims. The CESTAT decided multiple appeals by a common order, but it was argued that each appeal should have been distinct.

3. The respondent cited Instructions of the Central Board of Excise & Customs regarding the monetary limit for filing central excise appeals in the High Court. The limit was set at Rs.10 lakhs unless constitutional validity or specific circumstances were challenged.

4. The respondent argued against the appellant's claim for cash refund of accumulated Cenvat credit for deemed exports. The Tribunal disagreed with the objection raised by the DR and allowed the cash refund based on a judgment of the Gujarat High Court.

5. The High Court upheld the respondent's objection that the department should have filed separate appeals and limited the current appeal to a specific judgment. The questions raised regarding deemed exports and time limits for refund claims were addressed.

6. The High Court clarified that the respondent would not insist on cash refund for deemed exports and had already taken credit for the amount, complying with the necessary procedures.

7. Regarding the time limit for refund claims under Rule 5 of CCR, 2004, the High Court found the appeal amount to be below the Rs.10 lakh threshold and not involving constitutional issues, rendering the appeal unnecessary as per the Instructions dated 17.8.2011.

8. Consequently, the Central Excise Appeal was dismissed without delving into the merits of the questions raised, as they were deemed not covered by the judgment due to the specific circumstances and monetary limit considerations.