2016 (10) TMI 866 - AT - Central Excise

Refund claim - whether the appellant is eligible to refund for the period prior to 1/6/2000 when appellant was not registered? - That Notification No. 33/99-CE is conditional and contained mandatory procedure to be followed before a refund is made admissible to a manufacturer - Held that - It is also observed that one time eligibility can not give license to the appellant to get refund for all the periods before & after 16/11/2006 because refund for each month under Notification No. 33/99-CE is an independent claim required to be filed under the exemption notification. Whether each of such a refund claim filed by the appellant is admissible has to be seen only at the time of deciding that refund claim - appeal disposed off - decided against assessee.

Summary

Issues involved: Eligibility of the appellant for exemption under Notification No. 33/99-CE dated 8/7/1999 and the correctness of the modification made by the first appellate authority.

Analysis:

Issue 1: Eligibility of the appellant for exemption under Notification No. 33/99-CE dated 8/7/1999
The appellant argued that they are eligible for exemption with effect from 1/6/2000, even though they were not registered before that date. The Adjudicating authority had found the appellant eligible for exemption under the said notification for a period not exceeding 10 years from 1/6/2000. However, the Adjudicating authority did not address the eligibility of the appellant for a refund for the period before 1/6/2000. The appellant's eligibility for a refund under the notification is contingent upon following the mandatory procedures outlined, including filing statements as per the exemption notification. The absence of following these procedures would render the appellant ineligible for a refund. The appellant's argument that not being registered should not bar them from claiming a refund for the period before registration was countered by the Revenue, stating that the notification requires registration for eligibility for a refund. The Tribunal observed that the Adjudicating authority's order only determined the eligibility of the appellant under the notification and not specifically for a refund. Each refund claim under the notification is an independent claim that needs to be evaluated separately for admissibility. The modification made by the first appellate authority, allowing the department's appeal, was deemed unwarranted as it overreacted to the findings of the Adjudicating authority. Thus, the Tribunal held that the appellant's eligibility for a refund should be decided at the time of filing each claim, and the modification by the first appellate authority was set aside.

Issue 2: Correctness of the modification made by the first appellate authority
The first appellate authority had modified the Adjudicating authority's order, which had found the appellant eligible for exemption under the notification. The modification was based on the argument that the appellant was not eligible for a refund due to not being registered with the department as required by the notification. However, the Tribunal found that the modification was unwarranted as the Adjudicating authority's order did not specifically address the eligibility for a refund, and the appellant's eligibility for a refund should be determined when each claim is filed. The Tribunal concluded that the modification made by the first appellate authority was not justified and set it aside, disposing of the appellant's appeal accordingly.

In conclusion, the Tribunal clarified that the appellant's eligibility for a refund under Notification No. 33/99-CE dated 8/7/1999 should be determined at the time of filing each claim, and the modification made by the first appellate authority was unwarranted and set aside.