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2023 (9) TMI 5 - AT - Central ExciseRefund of excise duty payable on value addition - Area based exemption - Contravention of N/N. 20/2007, as amended - Effect of the notification which was quashed by the high court - irregular availment and utilization of credit of tax paid on clearance of waste and scrap - HELD THAT - The Ld. Commissioner had rejected the Appellant s application for fixation of special value addition rate and confirmed the demands, on the basis that the Appellant had foregone the option to seek special value addition and thus, they are only eligible for refund upto 56% of the value addition rate as mentioned in para 2A of the Notification No. 20/2007-CE (as amended). Hence, re-credit of duty in excess of 56% of value addition is liable to be recovered from them. The Appellant stated that in the said applications they have clearly indicated that they would have applied for fixation of special value addition rate, if the relevant Notification was in place at that point of time. Therefore, in terms of the Hon ble Supreme Court order in UNION OF INDIA AND ANR. ETC. VERSUS M/S V.V.F. LTD. AND ANOTHER ETC. ETC. 2020 (4) TMI 885 - SC ORDER , which had an effect of reinstating the amended notification, the Appellant vide its letter dated 24.08.2020 requested for fixation of special value addition rate for the FYs 2010-11, 2011-12 and 2012-13 in terms of the workings submitted earlier. It is observed that the rejection of the Applications filed by the Appellant for Special rate fixation on the ground that they have foregone such option, is legally not tenable - the impugned order is liable to be set aside and the matter is remanded back to the Commissioner to decide the request for special rate fixation applications of the Appellant on merit - appeal allowed by way of remand.
Issues involved:
The judgment deals with the issues related to the eligibility of an appellant for area-based exemption benefit under Notification No. 20/2007-CE, the restriction on refund of excise duty payable on value addition under amended notifications, the issuance of Show Cause Notices (SCNs) for irregular availment and utilization of credit of tax paid on waste and scrap, and the rejection of special value addition rate applications. Eligibility for Area-Based Exemption Benefit: The appellant's unit in Sikkim was eligible for area-based exemption benefit under Notification No. 20/2007-CE. However, subsequent amended notifications restricted the refund of excise duty payable on value addition to 56% of the total duty payable on final products. SCNs were issued to the appellant for alleged contraventions during the period from April 2009 to February 2012. Effect of Supreme Court Decision on Amended Notifications: The adjudication of SCNs was kept in abeyance pending a Supreme Court decision in the case of Union of India v. VVF Ltd. The Supreme Court upheld the constitutional validity of the amended notifications, reinstating subsequent notifications. The appellant requested for fixation of special value addition rate for certain financial years in line with the reinstated notifications. Adjudication and Rejection of Special Value Addition Rate Applications: The Ld. Commissioner adjudicated the SCNs and rejected the appellant's special value addition rate applications, confirming demands for central excise duty and penalties. The appellant contended that the rejection was unjustified as they had submitted the workings for special value addition rate as a precautionary measure when the amended notification was struck down. Appellant's Contentions and Legal Arguments: The appellant argued that once a notification is quashed, it ceases to have any legal effect. They cited precedents to support their contention that their working for special value addition rate should have been considered after the Supreme Court's decision reinstating the amended notifications. The appellant emphasized that their intention to avail the special rate option was clear from their communications with the department. Decision and Remand by the Tribunal: The Tribunal found merit in the appellant's contention that the rejection of their special rate fixation applications was not legally tenable. The impugned order was set aside, and the matter was remanded back to the Commissioner to decide the special rate fixation applications on merit. The appeal of the appellant was decided in their favor. Separate Judgment by the Judges: The judgment was pronounced by Hon'ble Mr. K. Anpazhakan.
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