2008 (7) TMI 90 - AT - Central Excise

Eligibility for refund Area based exemption question whether impugned goods are manufactured products or not should be verified before granting refund if goods are not excisable registration will be cancelled and refund will be given if goods are excisable, duty would be refunded under Area Based Notification - authorities have to take a holistic view regarding the Registration granted to them and the question as to whether the impugned goods are excisable or not

Summary

Issues:
Refund of Central Excise Duty under Area Based Notification No. 32/99-C.E. for goods described as "Compound No. 69/83 Super", "Compound Special R.S." and "Compound SR 36".

Analysis:
The Department filed an Appeal against the lower Appellate Authority's Order, denying refund of duty paid by the Respondents for the impugned goods. The lower Authority allowed the refund, stating that once duty is paid and accepted by the Department, refund must be granted regardless of whether the goods are manufactured and marketable. The Respondents argued that the goods are manufactured and marketable, or if not, the amount paid should be refunded. The Department contended that exemption under the Notification is for excisable goods, and if the goods are not proven to be manufactured and marketable, exemption does not apply. The Department also raised concerns about the double benefit arising from cash refund and Credit under Rule 12 of the Cenvat Credit Rules, 2004.

During the hearing, it was revealed that the Department was considering canceling the Registration granted to the Respondents for manufacturing the impugned goods. The Tribunal acknowledged the misuse of the Area Based Exemption Notification and the potential issue with Rule 12 of the Cenvat Credit Rules, 2004. However, they refrained from delving into the vires of Rule 12 as the third party benefiting from the Credit was not part of the case. The Tribunal focused solely on deciding if the Respondents were eligible for a refund of the duty paid.

The Tribunal held that the Respondents were entitled to a refund, but the Authorities needed to consider the Registration status and excisability of the goods. The matter was remanded to the Original Authority for a fresh decision on the refund and excisability issues. The Respondents were granted a hearing before the new Order was passed. The Appeal was allowed by way of remand, and the Cross Objection by the Respondents was disposed of accordingly.