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2023 (5) TMI 859 - AT - Central ExciseSeeking refund of Cenvat credit on HSD/LDO/IDO used for generation of electricity - unutilized Cenvat credit was never claimed as Cenvat credit on any of the ER-1s - Time Limitation - HELD THAT - The undisputed fact is the amount sought to be claimed as refund of unutilized Cenvat credit was in fact never claimed as Cenvat credit on any of the ER-1s filed by the appellant. As these amounts were never claimed as Cenvat credit, this cannot be lying as unutilised balance with the appellant. The refund claim on this primary ground itself is not maintainable. It is also observed that the refund claim has been filed nearly after the lapse of 14-15 years of the date of the communication referred. The lower authorities cannot be faulted for having held that the refund claim is barred by limitation as provided by Section 11B of the Central Excise Act, 1944. Appeal filed by the appellant is dismissed.
Issues:
1. Refund claim under Section 11B of the Central Excise Act, 1944 for Cenvat credit on HSD/LDO/IDO used for electricity generation. 2. Rejection of refund claim by Assistant Commissioner and Commissioner (Appeals) based on time bar. 3. Claim of refund beyond one year from the relevant date. 4. Non-availability of Cenvat credit in Excise records for the claimed amount. 5. Appeal against rejection of refund claim. Analysis: 1. The appeal was directed against the Order-in-Appeal upholding the rejection of a refund claim for Cenvat credit on HSD/LDO/IDO used for electricity generation. The appellant filed the refund claim after the expiry of one year from the date of payment, leading to a show cause notice being issued. The claim was rejected by the Assistant Commissioner and upheld by the Commissioner (Appeals). 2. The Commissioner (Appeals) observed that the claim was rejected solely on the grounds of being time-barred under Section 11B of the Central Excise Act, 1944. The appellant's argument regarding non-availment of Cenvat credit on IDO during the relevant period was considered, but the rejection was based on the statutory time limit for filing refund claims. 3. The appellant's submissions included letters requesting Cenvat credit on IDO used for electricity generation, emphasizing the connection between electricity generation and manufacturing activities. However, the claim was based on amounts shown as Cenvat credit receivable in balance sheets, not reflected in Excise records. The claim was filed well beyond the statutory one-year limit, leading to its rejection. 4. The appellant's counsel admitted that the claimed amount was never reflected as Cenvat credit in any Excise records, making the refund claim based on unutilized Cenvat credit unsustainable. The absence of these amounts in ER-1 returns indicated that they were not part of the appellant's Cenvat balance, further supporting the rejection of the claim. 5. The Tribunal dismissed the appeal, affirming the lower authorities' decision that the refund claim was time-barred and unsupported by evidence of Cenvat credit in Excise records. The appellant's delay in filing the claim and the lack of substantiated Cenvat credit claims led to the rejection of the appeal. This detailed analysis of the judgment outlines the issues involved, the arguments presented by the parties, and the reasons for the rejection of the refund claim based on statutory provisions and evidentiary support.
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