2015 (3) TMI 699 - HC - Central Excise

Availment of CENVAT Credit - Where the assessee has cleared the manufactured goods for export on payment of excise duty at 20% by debiting the Modvat Credit Account and subsequently obtained rebate of the said duty paid under Rule 12 of the Central Excise Rules, 1944 and later on if it is found that the correct duty payable was 10%, whether the excise authorities can claim cash payment of the excess duty debited to the Cenvat Credit Account - Held that - The notification dated 1st March, 1994, itself clarifies that there is a partial exemption to specified goods falling under Chapters 28, 29 and 30 of the Central Excise Tariff Act, 1985. A copy of this Notification dated 1st March, 1994 (Notification No.6 /94- C.E .) denotes that serial no.6 are bulk drugs on which 10% Adv. duty can be paid. There are no conditions attached and appearing in the table. - exemption as partially granted by this notification was available in both the cases namely clearance for home consumption and for export. If the Assessee in this case has paid duty at the tariff rate namely 20% and not availed of the exemption under the subject notification, and subsequently sought refund of the duty paid over and above 10%, or has made payment from the accumulated amount or the credit accumulated in his Modvat account, the Tribunal found that he could not have been denied the relief. Show cause cum demand notice itself was without any authority and jurisdiction. No demand could have been raised in the present circumstances and such a finding is essentially emanating from the purported factual position. The finding of fact, therefore, really raises no substantial question of law. We find that the Tribunal s reasoning and particularly in paragraph no.4 , does not warrant our interference because, the Tribunal s view is a possible and plausible one. It is consistent with the factual materials on record. Hence, it is neither perverse nor vitiated by any error of law apparent on the face of record. There is no prohibition in law for the course adopted by the Assessee that we must sustain the impugned order. - Decided against Revenue.

Summary

Issues:
1. Interpretation of excise duty payment in case of export and subsequent rebate.
2. Applicability of Rule 57 I of the Central Excise Rules, 1944.
3. Validity of the demand raised by excise authorities for excess duty debited to the Cenvat Credit Account.

Analysis:
1. The case involved a substantial question of law regarding the payment of excise duty for exported goods at a higher rate of 20% instead of the correct rate of 10%. The appellant contended that the duty was paid using Modvat credit and later sought a rebate under Rule 12 of the Central Excise Rules, 1944. The dispute arose when the excise authorities demanded cash payment for the excess duty debited to the Cenvat Credit Account. The court examined the facts, including the notification granting a partial exemption for specified goods, and concluded that the appellant was entitled to seek a refund of the excess duty paid, even if it was from the Modvat account, as it did not amount to wrongful availment of credit.

2. The appellant argued that the Tribunal's decision upholding the demand notice was erroneous as it misinterpreted Rule 57 I of the Central Excise Rules, 2002. The court disagreed with this interpretation, stating that Rule 57 I pertains to irregular utilization of credit on inputs, which was not the case here. The court found that the appellant had not availed of the partial exemption under the notification and had paid duty at the tariff rate of 20% for export, seeking a refund for the excess amount paid. Therefore, the demand raised under Rule 57 I was deemed unjustified and without authority or jurisdiction.

3. The court analyzed the Tribunal's reasoning and found it to be plausible and consistent with the factual evidence presented. It noted that the appellant's actions did not constitute a wrongful availment of Modvat credit, and the demand raised by the excise authorities lacked legal basis. Consequently, the court dismissed the appeal, upholding the Tribunal's decision and emphasizing that the appellant was entitled to seek a refund of the excess duty paid for export, even if it was paid from the Modvat account. The judgment highlighted the importance of correctly interpreting excise duty provisions and ensuring that demands by authorities are legally justified.