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2017 (7) TMI 22 - HC - Central ExciseRefund claim - Whether the Hon ble CESTAT is correct in directing the consequential refund under Section 11B of the amount paid by the appellant, to be credited to the CENVAT Credit account, in the absence of any provision in the said Section for such re-credit? - Held that - the provisions of Section 11 B(2)(c) of CE ACT 1944 would come to the aid of the Assessee. Also, there is no dispute that the refund claimed by the assessee is within the period of limitation as prescribed under sub section (1) of Section 11 B - A perusal of the aforementioned Rules would show that if on receipt of any applications, the concerned officer, who is referred to in sub section (2) of Section 11 B is satisfied that the whole or part of any duty of excise and interest if any paid on such duty is refundable, he is required to make an order of refund and the amount so determined is to be credited to a Fund, i.e., the Consumer Welfare Fund. There is no impediment in the said amount being refunded to the Assessee by way of cash, contrary to what the Tribunal has indicated. This is the only viable and practical approach which can be adopted in the instant case as the Revenue does not dispute the fact that the final product manufactured by the assessee which is fabric, is no longer amenable to excise duty. In these circumstances, quite obviously, the re-credit of duty as ordered by the Tribunal via impugned Judgment or Order will not serve any purpose insofar as the Assessee is concerned. Refund allowed - Appeal allowed - decided in favor of appellant.
Issues Involved:
1. Refund under Section 11B and its applicability to re-crediting the CENVAT Credit Account. 2. Treatment of an application for refund of credit of duty already utilized to pay demand under Section 11A as unutilized credit. Issue-wise Detailed Analysis: 1. Refund under Section 11B and its applicability to re-crediting the CENVAT Credit Account: The Assessee filed appeals against the Tribunal's order which partly allowed the appeals of both the Assessee and the Revenue, directing the refund of ?30,60,023/- to be re-credited to the CENVAT Credit Account instead of being refunded in cash. The Assessee argued that the refund should be processed under Section 11B(2)(c) of the Central Excise Act, 1944 (CE Act), which allows for a cash refund of credit of duty paid on excisable goods used as inputs. The Assessee contended that the provisions of Rule 5 of the CENVAT Credit Rules, 2004, which restrict cash refunds to cases of export, were not applicable as the final product was not exported. The Revenue argued that since the duty was paid by debiting the CENVAT credit account, the refund should be made by re-crediting the account. The Court held that the provisions of Section 11B(2)(c) of the CE Act would come to the aid of the Assessee, allowing for a cash refund of the credit of duty paid on excisable goods used as inputs. The Court noted that there was no unutilized balance left in the Assessee's CENVAT credit account and that the amounts were credited to the Revenue by debiting the CENVAT account. The Court concluded that there was no impediment to refunding the amount in cash, as the final product was no longer subject to excise duty, making re-crediting the account impractical. 2. Treatment of an application for refund of credit of duty already utilized to pay demand under Section 11A as unutilized credit: The Assessee utilized the credit of Additional Excise Duty (Textiles and Textile Articles) [AED (T & TA)] paid on yarn to pay Basic Excise Duty (BED) and Additional Excise Duty in lieu of Sales Tax (AED, GSI) on fabric. The Department objected, issuing a show cause notice and raising a demand under Rule 12 of the CENVAT Credit Rules, 2001, read with the proviso to Section 11A(1) of the CE Act. The Tribunal set aside the demand on the ground of limitation, leading the Assessee to file a refund claim for ?30,60,023/-. The Deputy Commissioner sanctioned a cash refund of ?10,00,000/- but rejected the refund of ?20,60,023/-. The Commissioner (Appeals) upheld the cash refund of ?10,00,000/- but dismissed the appeal for the balance amount. The Tribunal directed the refund to be re-credited to the CENVAT account, which the Assessee contested. The Court agreed with the Assessee's contention that the refund should be processed under Section 11B(2)(c) of the CE Act, which allows for a cash refund of credit of duty paid on excisable goods used as inputs. The Court found that the Assessee had squared off credits by making debit entries and that re-crediting the account would not serve any purpose as the final product was no longer subject to excise duty. Conclusion: The Court allowed the appeals, setting aside the Tribunal's order and directing that the refund be made in cash. The Court answered both questions of law in favor of the Assessee and against the Revenue, concluding that the Tribunal erred in directing the refund to be re-credited to the CENVAT account instead of being refunded in cash.
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