2012 (5) TMI 553 - AT - Central Excise

Refund of unutilised cenvat credit - Held that - Following decision of assessee s own previous case in 2011 (8) TMI 980 - CESTAT AHMEDABAD - proviso itself makes it clear that the restriction is applicable only in respect of Cenvat credit claimed as refund and is not applicable to terminal excise duty paid as drawback by under Foreign Trade Policy - EOUs who receive duty paid goods can avail input credit for the duty paid on such goods and utilize the credit for payment of duty on DTA clearances and if for some reasons, the credit cannot be utilized, the same can be claimed as refund under Rule 5 of CENVAT Credit Rules. In addition, as per para 8.3 of Foreign Trade Policy, the supplies to EOUs are treated as Deemed Export . Thus, the manufacturers have the additional facility to claim the benefit of refund of Terminal Excise Duty and deemed Export drawback on such supplies to EOUs. - Decided against Revenue.

Summary

Issues: Stay petition by Revenue against order-in-appeal, Cross objection by assessee for delay condonation, Appeal by Revenue on refund of unutilized cenvat credit.

Stay Petition by Revenue: The Revenue filed a stay petition against an order-in-appeal staying the operation of the impugned order. The Tribunal found that the appeals and cross objections could be disposed of, and after hearing both sides, it was observed that the cross objection and application by the assessee for condoning delay were not necessary as the impugned order favored the assessee. Therefore, the stay application was dismissed, and the cross objection was also dismissed.

Cross Objection by Assessee: The Tribunal examined the cross objection and delay condonation application by the assessee. It was noted that the first appellate authority's order favored the assessee, rendering the cross objection unnecessary. Consequently, there was no justification for condoning the delay in filing the cross objection, leading to the dismissal of the stay application and cross objection.

Appeal by Revenue on Refund: The appeal by the Revenue pertained to the issue of refund arising from unutilized cenvat credit claimed by the respondent. The Tribunal referred to a previous order where a similar issue for the same assessee had been settled in favor of the assessee. Since the current case involved an identical issue already decided in favor of the assessee, the Tribunal declined to interfere in the impugned order, resulting in the rejection of the Revenue's appeal.

This judgment highlights the Tribunal's decisions on a stay petition, cross objection, and appeal by the Revenue concerning refund of unutilized cenvat credit. The Tribunal dismissed the stay application and cross objection by the assessee as the impugned order favored the assessee, rendering them unnecessary. Additionally, the Tribunal rejected the Revenue's appeal on the grounds that a similar issue for the same assessee had been previously settled in favor of the assessee.