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2017 (6) TMI 425 - AT - Central ExciseRefund of CENVAT credit - credit availed on the basis of duty paying documents - denial of refund on the ground that the same is not within the stipulated period as prescribed in Section 11B of the CEA, 1944 - But while passing the impugned order, the refund claim has been denied on the ground which has not been taken in the show-cause notice and the same is not sustainable in law - scope of SCN - Held that - as per the Rule 3(4) read with Rule 9(1)(a)(i) of the CENVAT Credit Rules, CENVAT credit availed may be utilized for payment of an amount equivalent to CENVAT Credit availed on inputs if such inputs are removed as such and in this case also, the duty was paid when the invoice was issued to the buyer JSW Steels Ltd. The appellant has cleared the inputs as such by paying the duty and therefore, the payment of duty at the insistence of the audit second time is wrong and illegal and therefore, the appellant is entitled to refund of the same as per Section 11B of the CEA. Appeal allowed - decided in favor of appellant.
Issues:
Claim for refund of excise duty - Reversal of CENVAT credit - Compliance with Section 11B of Central Excise Act, 1944 - Availment of credit on goods consigned to customer - Violation of CENVAT Credit Rules, 2004. Analysis: The appellant received an order for supply of Motors from M/s. JSW Steel Ltd. and placed an order with M/s. Alstom Industrial Products Ltd. to consign the goods directly to M/s. JSW Steel Ltd. The appellant availed CENVAT credit based on the original invoice from M/s. Alstom. However, during an audit, the appellant was asked to pay duty on goods not received in their premises. Subsequently, the appellant reversed the CENVAT credit and filed a refund claim, which was rejected by the Assistant Commissioner. The rejection was based on the grounds that the appellant had availed credit on goods consigned to their customer, violating CENVAT Credit Rules. The appellant contended that the reversal resulted in double payment of duty, as they had already discharged the duty liability. The Commissioner (A) rejected the appeal, leading to the present appeal. Upon hearing both parties, the appellant argued that the impugned order went beyond the show-cause notice, which only addressed the issue of the refund claim period under Section 11B. The appellant maintained that the refund claim was filed within the prescribed period and cited relevant CENVAT Credit Rules to support their case. The appellant emphasized that the duty was paid erroneously due to audit insistence, and demanding duty again was unjustified. The appellant sought a refund based on the erroneous payment of duty. The learned AR defended the impugned order, but the Tribunal found that the denial of the refund claim on grounds not mentioned in the show-cause notice was unsustainable in law. The Tribunal noted that the appellant had reversed the credit and filed the refund claim within the limitation period. Additionally, the Tribunal analyzed the CENVAT Credit Rules and found that the appellant's actions were in compliance with the rules. The Tribunal disagreed with the Commissioner (A)'s findings regarding double credit availed and the nature of the appellant's activities. The Tribunal concluded that the appellant was entitled to a refund under Section 11B of the Central Excise Act, setting aside the impugned order and allowing the appeal of the appellant. In conclusion, the Tribunal ruled in favor of the appellant, emphasizing compliance with Section 11B and the CENVAT Credit Rules, while highlighting the unjust nature of demanding duty twice on the same grounds. The judgment provided clarity on the legality of the appellant's actions and the entitlement to a refund based on the erroneous payment of duty.
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