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2017 (3) TMI 1453 - AT - Central ExciseRefund in cash - the appellants have filed the refund claim in respect of same duty amount which was deposited by M/s Escorts (TED) as per the order of the Settlement Commission - whether the refund claim filed by the appellants would amount to re-opening of the order of the Settlement Commission? - Held that - during the material time, both M/s Escorts (TED) and Escorts Ltd. (TD), later known as AMG (Tractor Plant), were having common central excise registration and therefore seeking of the refund by Escorts Ltd.-AMG (Tractor Plant) paid by M/s Escorts (TED) would not only nullify the terms of the settlement, it would also be tantamount to re-opening and vitiating the proceedings of the Settlement Commission, which are conclusive in terms of Section 32F(7). Accordingly, the refund claim of ₹ 3,84,01,009/- filed by M/s Escorts Ltd- AMG (Tractor Plant) would be hit by proviso of Section 32F(7) and 32F(9) as also 32M of the Act and is therefore not sustainable on that ground. Whether cash refund is allowed? - Held that - The refund claim for differential duty was filed in 2005 under Rule 57E but the said Rule was not in existence at that point of time. Hence, the relief sought by appellants under Rule 57E is not available to the appellants even by virtue of provision of Section 38A ibid. Appeal dismissed - decided against appellant.
Issues Involved:
1. Whether the refund claim filed by the appellants would amount to re-opening of the order of the Settlement Commission. 2. Whether cash refund is admissible to the appellants under Rule 57E of Central Excise Rules, 1944. 3. Whether Section 38A of the Central Excise Act, 1944 protects the rights and privileges of the appellants. Issue-wise Analysis: 1. Re-opening of Settlement Commission's Order: The appellants argued that the refund claim was filed by a different unit, which is entitled to take Cenvat Credit of the duty paid by Escorts (TED). However, the Tribunal agreed with the Commissioner (Appeals) that the refund claim pertains to the same duty amount deposited by M/s Escorts (TED) as per the Settlement Commission's order. The Settlement Commission's order fixed the total duty liability at ?3,84,01,009/- and granted full immunity from interest, penalty, and prosecution. The Tribunal held that M/s Escorts (TED) were not authorized to pass on the Cenvat credit of the amount appropriated, and thus, there was no question of refunding that amount. The Tribunal concluded that seeking a refund by Escorts Ltd.-AMG (Tractor Plant) would nullify the terms of the settlement and re-open the proceedings of the Settlement Commission, which are conclusive under Section 32F(7) of the Central Excise Act, 1944. 2. Admissibility of Cash Refund under Rule 57E: The appellants contended that Rule 57E allowed the refund if the adjustment of input credit was not possible, citing the exemption for tractors from excise duty as the reason. However, the Tribunal noted that Rule 57E was abolished w.e.f. 01.04.2000, and the differential duty was paid in 2004, with the refund claim filed in 2005. Since Rule 57E was not in existence at the time of payment and refund claim, no refund could be granted under a non-existent rule. The Tribunal distinguished the present case from the case of Smithklime Beechem Consumer Healthcare Ltd., where the assessment was provisional, and a certificate under Section 57E was issued. In the current case, there was no provisional assessment or certificate under 57E, and the rule was not on the statute book when the differential duty was paid and refund claimed. 3. Protection of Rights under Section 38A: The appellants argued that Section 38A protects their rights and privileges accrued during the period from March 1995 to November 1995 when they procured the inputs. The Tribunal acknowledged that the spare parts were supplied in 1995, but the cause of action for differential duty payment arose in 2004. Since Rule 57E was abolished in 2000, any rights under this rule would be limited to the extent available on the date of its repeal. The Tribunal held that since the differential duty was paid after the rule's repeal, the appellants could not claim refund under Rule 57E. The Tribunal also found the reliance on the Tamil Nadu Petro Products Ltd. case misplaced, as it dealt with a different context where Rule 57E(3) was applied to deny credits earned on inputs prior to its enactment. Conclusion: The Tribunal found no infirmity in the order of the Commissioner (Appeals) and upheld the same. The appeal filed by the appellants was dismissed, and the refund claim was not sustainable on the grounds discussed.
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