2018 (9) TMI 738 - AT - Central Excise

Refund claim - whether M/s BHEL (respondent herein) can claim refund of the duty paid by their supplier under Sec.11B and whether the same can be allowed as CENVAT credit? - Held that - Sec.11B of the Central Excise Act does not restrict the entitlement of claim of refund to the person who paid the duty only. In fact, it can be claimed by any person if he can prove that he is entitled to the refund and he has borne the burden of the tax - when M/s CST had paid the duty which they were not required to and the respondent herein had borne the burden of the duty, they are entitled to claim refund of the duty. Whether M/s CST had paid duty in excess considering that the N/N. 6/2002-CE was already rescinded during the relevant period? - Held that - The first appellate authority in the impugned order has clearly considered this issue and recorded that the Notification No.6/2002-CE was rescinded but an identical Notification No.6/2006-CE dated 01.03.2006 was issued and M/s CST was squarely covered by Sl.No.91 of this notification - there is no reason to hold that M/s CST had not paid excess duty or that the respondent herein cannot claim refund of the same. Appeal dismissed.

Summary

Issues:
1. Whether the respondent can claim a refund of duty paid by their supplier under Sec.11B and if it can be allowed as CENVAT credit.
2. Whether the supplier paid duty in excess as per the CESTAT order considering the rescission of Notification No.6/2002-CE during the relevant period.

Analysis:

1. The first issue revolves around whether the respondent, a Public Sector Undertaking, can claim a refund of duty paid by their supplier, M/s CST, under Sec.11B and if it qualifies as CENVAT credit. The CESTAT held that Sec.11B does not restrict the refund claim entitlement to the duty payer only. Any person bearing the tax burden can claim a refund if entitled. The Tribunal emphasized that the section starts with "any person claiming the refund" rather than "the manufacturer who paid the duty." As M/s CST overpaid duty, and the respondent bore the burden, they are eligible for the refund.

2. The second issue focuses on whether M/s CST paid excess duty based on the CESTAT order, considering the rescission of Notification No.6/2002-CE. The Tribunal found that the Notification was rescinded but replaced by an identical one, No.6/2006-CE. The first appellate authority confirmed that M/s CST fell under the new notification's coverage. Consequently, the Tribunal concluded that M/s CST did pay excess duty, and the respondent could rightfully claim a refund. The Tribunal dismissed the appeal by the revenue, upholding the respondent's eligibility for the refund.

In conclusion, the Tribunal rejected the revenue's appeal, affirming the respondent's right to claim a refund of the duty paid by their supplier and emphasizing that the replacement notification validated the excess duty payment. The judgment clarifies the refund entitlement under Sec.11B and highlights the importance of tax burden consideration in refund claims, ensuring fair treatment for all parties involved in the transaction.