2012 (4) TMI 502 - AT - Central Excise

CENVAT Credit - Denial of refund claim - Held that - There is confusion about the product involved in the instant case. Both in the order of the adjudicating authority and the appellate authority, they have referred to the goods as potable alcohol (rectified spirit) as an exempted item. Chapter Note 4 to Chapter 22 states This Chapter does not cover alcoholic liquors that for human consumption . Further entry 84 of List 1 (Union List) the Seventh Schedule to the Constitution itself makes it clear that alcoholic liquors for human consumption is outside the purview of Central Excise levy. Thus, potable alcohol is not an excisable item at all. Thus the reference to potable alcohol as an exempted item by the lower adjudicating and appellate authorities is totally incorrect. Consequently, no Cenvat credit of duly paid on molasses can be taken under the Cenvat Credit Rules, 2004, in respect of molasses used in the manufacture of potable alcohol, as the Central Excise Act, 1944 and the Cenvat Credit Rules apply to excisable goods and not to non-excisable goods. Availment of Cenvat credit was void ab initio. - Unless all the relevant facts mentioned above are ascertained, the quantum of eligible refund can not be determined. Therefore, the matter is remanded back to the original adjudicating authority for fresh consideration after ascertaining all the relevant facts and thereafter, pass an appropriate order in accordance with law - Decided in favour of assessee.

Summary

Issues:
Refund claim for education cess on potable alcohol, Cenvat credit reversal, Time limitation for refund claim, Classification of potable alcohol as excisable or non-excisable.

Refund Claim for Education Cess on Potable Alcohol:
The appellant, engaged in manufacturing sugar and alcohol, filed a refund claim for education cess paid on potable alcohol, citing the reversal of Cenvat credit on clearance of said alcohol. The issue arose due to the lack of separate accounts for raw materials used in manufacturing dutiable and exempted alcohol. The lower authorities rejected the claim, stating the appellant was not entitled to a refund under Rule 6(3)(a) of Cenvat Credit Rules, 2004. The appellate authority noted the time limitation for the claim and the classification of potable alcohol as excisable but exempted. However, the Tribunal found potable alcohol to be non-excisable, making the appellant eligible for the refund. The Tribunal remanded the matter to ascertain payment details and determine the quantum of the eligible refund.

Cenvat Credit Reversal:
The appellant claimed that potable alcohol is non-excisable, justifying the reversal of Cenvat credit on molasses used in its production. The Tribunal agreed, emphasizing that Cenvat credit rules apply to excisable, not non-excisable goods. It deemed the Cenvat credit availed as void ab initio and allowed the refund of education cess wrongly paid on potable alcohol. However, verification of credit reversal and payment of interest were deemed necessary before determining the eligible refund amount.

Time Limitation for Refund Claim:
The lower authorities had held a portion of the refund claim as time-barred, filed beyond the one-year limitation period. The Tribunal concurred with this finding, emphasizing the importance of adhering to statutory time limits for refund claims. The matter was remanded for fresh consideration to determine the eligible refund amount after verifying all relevant facts.

Classification of Potable Alcohol:
The key issue was whether potable alcohol should be classified as excisable or non-excisable. The lower authorities classified it as excisable but exempted, leading to the rejection of the refund claim. However, the Tribunal clarified that potable alcohol is non-excisable, outside the purview of Central Excise levy. This determination played a crucial role in allowing the refund claim for education cess on potable alcohol and remanding the case for further assessment.

In conclusion, the Tribunal allowed the appeal by remanding the matter to the original adjudicating authority for a comprehensive review based on the clarification that potable alcohol is non-excisable. The appellant was directed to be given a reasonable opportunity to present their case, emphasizing the need to ascertain all relevant facts before determining the eligible refund amount.