2017 (10) TMI 792 - AT - Central Excise

Refund of unutilized CENVAT credit - denial on the ground that the appellant is maintaining separate account for basic excise duty and additional excise duty on Textile and Textile articles - Rule 5 of CCR, 2004 - whether the accumulated cenvat credit in their cenvat credit account for AED (T&TA) is refundable under Rule 5 of the CCR, 2004 in the facts and circumstances of the case? - Held that - BED and AED could have been utilised inter-changeably - the appellant is entitled to claim refund of accumulated AED and T & TA lying unutilized in their Cenvat Credit account - refund allowed. In terms of N/N. 11/2002 CE(NT) dated 1.3.2002 whether the appellant is entitled for refund claim or not? - Held that - This issue has already been settled by this Tribunal in the case of CCE, Jaipur II vs. Bhilwara Spinners Ltd. 2007 (11) TMI 249 - CESTAT, NEW DELHI , where it was held that refund claim u/r 5 of Cenvat Credit Rules cannot be denied unless the assessee claimed drawback or rebate - It is an admitted fact that in this case, the appellant has not claimed draw back of duty / rebate on the exported goods. Therefore, the provisions of N/N. 11/2002 CE (NT) dated 1.3.2002 are not restricting the claim of refund under Rule 5 of CCR, 2004, filed by the appellant - refund allowed. Refund allowed - decided in favor of appellant.

Summary

Issues:
1. Whether the accumulated cenvat credit for AED (T&TA) is refundable under Rule 5 of the Cenvat Credit Rules, 2004.
2. Whether the appellant is entitled to a refund claim under notification No. 11/2002 CE(NT) dated 1.3.2002.

Issue 1:
The appellant, engaged in exporting yarn, filed a refund claim under Rule 5 of Cenvat Credit Rules, 2004 due to an accumulation of Cenvat Credit in their account from exporting yarn manufactured on duty paid fiber. The claim was initially sanctioned but later rejected by the Commissioner (Appeals) citing separate accounts for basic excise duty and additional excise duty on Textile and Textile articles. The Tribunal, in the appellant's own case for an earlier period, allowed the refund of CENVAT credit availed by them for AED (T&TA) under Rule 5. The Tribunal held that maintaining separate accounts was not necessary, and the appellant could have utilized BED surplus for AED. The Commissioner (Appeals) disallowed the refund based on the appellant's account maintenance but was overruled by the Tribunal, stating that the lower authorities' actions were unjustifiable. Therefore, the appellant was entitled to claim a refund of accumulated AED and T&TA.

Issue 2:
The Tribunal had previously ruled in the case of CCE, Jaipur II vs. Bhilwara Spinners Ltd. that the appellant is eligible for a refund of accumulated Cenvat credit of duty paid on inputs against export goods under DEPB scheme if no separate claim for rebate or drawback was made. As the appellant had not claimed drawback or rebate on the exported goods, the provisions of Notification No. 11/2002 CE(NT) dated 1.3.2002 did not restrict the refund claim under Rule 5 of Cenvat Credit Rules, 2004. Consequently, the Tribunal held the refund claim admissible, setting aside the impugned order and allowing the appeal with consequential relief.