2008 (1) TMI 333 - HC - Central Excise

Claim for refund of CVD (Counter Veiling Duty) paid on imported material - admittedly, the said raw material was consumed in the manufacturing of excisable goods exported out of India by the appellant - Once the eligibility of the appellant for the benefit of the CENVAT credit on the CVD paid by him is not disputed by the Revenue then in that case the appellant is entitled to payment/refund of the said amount u/s 11B (2)

Summary

Issues Involved:
1. Applicability of Section 11B of the Central Excise Act, 1944 for the refund of Counter Veiling Duty (CVD).
2. Time-barred claims under Section 11B of the Central Excise Act, 1944.
3. Eligibility for MODVAT/CENVAT credit on CVD paid on imported raw materials.

Issue-wise Detailed Analysis:

1. Applicability of Section 11B of the Central Excise Act, 1944 for the refund of Counter Veiling Duty (CVD):
The core issue in this case was whether the refund claim of CVD is applicable under Section 11B of the Central Excise Act, 1944. The respondent-assessee, a merchant-exporter of pharmaceuticals, filed a refund claim for Rs. 9,69,250/- paid as CVD on imported raw material used in manufacturing goods that were exported. The Asstt. Commissioner rejected the claim, stating that Section 11B allows refunds for duty of excise, not CVD charged under Section 3(1) of the Customs Tariff Act, 1975. The Commissioner (Appeals) upheld this view, emphasizing that Section 11B pertains to excise duty, not additional customs duty (CVD).

However, the Tribunal held that sub-section 2(a) of Section 11B envisaged that the rebate of duty on excisable goods exported or on excisable material used in the manufacture of goods which are exported, are eligible for refund. This interpretation was supported by the explanation in Section 11B, which includes rebate of duty on excisable goods exported out of India or on excisable materials used in the manufacture of goods exported out of India.

2. Time-barred claims under Section 11B of the Central Excise Act, 1944:
The Asstt. Commissioner also noted that one of the refund claims was time-barred as it was filed beyond the one-year limit prescribed under Section 11B. The Commissioner (Appeals) did not address this point in detail, as the primary ground for rejection was the non-applicability of Section 11B to CVD. The Tribunal did not specifically address the time-bar issue either, as it focused on the broader applicability of Section 11B to the refund of CVD.

3. Eligibility for MODVAT/CENVAT credit on CVD paid on imported raw materials:
The respondent-assessee argued that since the CVD was collected as Central Excise Duty, they were entitled to claim CENVAT credit. The Asstt. Commissioner acknowledged that CVD paid at the time of importation is equal to excise duty for similar goods manufactured in India, and that the manufacturer of the final product is entitled to CENVAT credit. However, since the assessee did not avail of the CENVAT credit, the provisions regarding CENVAT credit rules were deemed misplaced.

The Tribunal, however, noted that the assessee was eligible for MODVAT/CENVAT credit on the CVD paid and, had they availed this credit, they would have been entitled to a refund under Section 11B(2) of the Act. The Tribunal concluded that the eligibility for MODVAT/CENVAT credit on CVD paid by the assessee was not disputed by the Revenue, thus entitling the assessee to the refund under Section 11B(2).

Conclusion:
The High Court dismissed the appeal, agreeing with the Tribunal's interpretation that Section 11B of the Central Excise Act, 1944, does cover the refund of CVD paid on imported raw materials used in the manufacture of goods exported out of India. The court found that the argument raised by the Revenue was misconceived and devoid of merit, affirming the Tribunal's decision to grant the refund to the assessee.