2017 (7) TMI 284 - AT - Central Excise

Refund claim - maintainability, or otherwise, of the refund claimed which, in effect, seeks restoration of a credit that had been reversed consequent upon an adjudication order - denial on the ground that claim for refund had not been filed within the stipulated period prescribed in section 11B of Central Excise Act, 1944 - Held that - restoration of credit is mere accountal that was not required to be processed in accordance with section 11B of Central Excise Act, 1944. Consequently, the claim for refund, the show cause notice for rejection, the adjudication order and the impugned order are not sustainable in law - when the refund claim itself deprived of the authority of law, the appeal before the Tribunal is infructuous - the entire proceedings from the beginning are not maintainable in law and that the appellant is at liberty to adjust the CENVAT credit to the extent permitted by the CENVAT Credit Rules, 2004 - appeal allowed - decided partly in favor of appellant.

Issues Involved:
- Appeal against rejection and sustaining of refund claim
- Debit of amount to CENVAT Credit
- Compliance with re-warehousing certificate requirement
- Restoration of credit and refund claim
- Imposition of penalty
- Maintainability of refund claim
- Restoration of credit without recourse to Section 11B
- Tribunal's decision on restoration of credit
- Sustainability of orders in law

Detailed Analysis:

1. Appeal against rejection and sustaining of refund claim:
The appellant, M/s Siemens Ltd, appealed against the rejection and sustaining of its refund claim for an amount of ?2,90,858 that was debited to the CENVAT Credit. The claim was filed following an order requiring payment of the said amount, which was considered an erroneous re-credit by the appellant.

2. Debit of amount to CENVAT Credit:
The appellant had supplied customised electrical equipment to an 'export-oriented unit' without payment of duty, leading to a debit of ?2,90,858 on 23rd January 2008. Subsequently, upon fulfilling the re-warehousing certificate requirement, the appellant reversed the debit entry on 27th March 2000.

3. Compliance with re-warehousing certificate requirement:
The failure to furnish the re-warehousing certificate within the stipulated period resulted in the debit of the said amount. The authorities issued a show cause notice for recovery and penal action due to this non-compliance.

4. Restoration of credit and refund claim:
The appellant sought restoration of credit that had been reversed following an adjudication order. The claim for refund was based on the contention that the duty was not recoverable after complying with the re-warehousing certificate requirement.

5. Imposition of penalty:
The adjudicating authority, relying on precedent, denied the unilateral restoration of credit and imposed a penalty of ?5,000 on the appellant along with ordering recovery of the reversed amount.

6. Maintainability of refund claim:
The core issue revolved around the maintainability of the refund claim seeking restoration of credit reversed by the adjudication order. The appellant challenged the rejection of the claim based on the Tribunal's decision in Century Rayon case.

7. Restoration of credit without recourse to Section 11B:
The Tribunal held that restoration of credit did not require processing under Section 11B of the Central Excise Act, 1944, citing precedents that such restoration was merely a correction of entries in the account.

8. Tribunal's decision on restoration of credit:
The Tribunal emphasized that restoration of credit was not subject to Section 11B procedures, rendering the claim for refund, show cause notice, adjudication order, and impugned order unsustainable in law.

9. Sustainability of orders in law:
The Tribunal concluded that the entire proceedings were not maintainable in law, allowing the appellant to adjust the CENVAT credit as permitted by the rules. The order leading to the refund claim was not disputed, and the Revenue was granted liberty to proceed with further action in accordance with the law.

10. Conclusion:
The appeal was disposed of, with the Tribunal pronouncing the decision on 12/06/2017, highlighting the importance of legal compliance and procedural correctness in matters of credit restoration and refund claims in excise law.

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