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2024 (8) TMI 655 - AT - Central ExciseRecovery of excess refund of excise duty - non-utilization of entire CENVAT Credit availed on inputs during the month of November 2002 which was subsequently utilized in December 2002 - N/N. 32/99-C.E. dated 08.07.1999 - HELD THAT - The issue involved in the present case has already been settled by this Tribunal in the case of COMMISSIONER OF C. EX., JAMMU VERSUS NEW INDIA WIRE CABLES 2008 (7) TMI 213 - CESTAT NEW DELHI wherein an assessee working under a similar area-based exemption Notification had availed CENVAT Credit in one month but carried forward and utilized the same in subsequent month / months. The Department disputed the same and sought to recover the excess refund sanctioned to the assessee in the initial month where the CENVAT Credit was not fully utilized. The Tribunal, New Delhi in the said decision has allowed the contention of the assessee that once the very same amount of CENVAT Credit is utilized in the subsequent period, there is no loss to the revenue. It was also held that the confirmed demand in such a scenario will defeat the purpose of the Notification. Thus, there was no provision during the impugned period that the CENVAT Credit is to be utilized in the same month and the said provision has been made effective vide the Finance Bill, 2003 by way of Section 153 of the Act, in these circumstances, the CENVAT Credit unutilized in the month of November, 2002 cannot be debarred to the appellant. There are no merit in the impugned order and accordingly, the same is set aside, holding that no excess refund has been allowed to the appellant. Consequently, the recovery proceedings against the appellant are not sustainable - appeal allowed.
Issues:
1. Recovery of excess refund of excise duty under exemption Notification No. 32/99-C.E. 2. Interpretation of the amendment by Notification No. 61/2002-CE dated 23.12.2002 regarding CENVAT Credit utilization. 3. Validity of recovery order issued by Deputy Commissioner of Central Excise, Guwahati. 4. Impact of delayed utilization of CENVAT credit on refund entitlement. 5. Comparison with similar cases and judicial pronouncements. 6. Dispute over excess refund recovery and revenue impact. Analysis: The appellant appealed against the recovery initiated under Section 153 of the Finance Act, 2003 for an alleged excess refund of excise duty granted under exemption Notification No. 32/99-C.E. The dispute arose due to the amendment by Notification No. 61/2002-CE, which mandated the utilization of entire CENVAT Credit availed on inputs for claiming the refund. The retrospective effect of this amendment from 08.07.1999 was emphasized, leading to the recovery order of Rs.16,62,336 against the appellant for November 2002, August 2003, and September 2006. The appellant contended that they had complied with the new condition of utilizing the entire CENVAT Credit from December 2002 onwards, rendering the recovery illogical for the previous month. The appellant argued that the total refund amount over the period remained the same, irrespective of the month of CENVAT Credit utilization. They emphasized their non-deliberate accumulation of credit and subsequent utilization to settle duty liabilities. The appellant cited precedents such as Commissioner of C.Ex., Jammu v. M/s. New India Wires & Cables to support their position that once the CENVAT Credit was utilized in subsequent months, there was no revenue loss, making the recovery unsustainable. The appellant highlighted similar judgments by the jurisdictional Bench of CESTAT to reinforce their stance on the revenue-neutral nature of delayed credit utilization. In contrast, the Revenue supported the impugned recovery order. However, the Tribunal referred to the precedent case of Commissioner of C.Ex., Jammu v. M/s. New India Wires & Cables to conclude that since there was no provision mandating same-month utilization of CENVAT Credit during the disputed period, the recovery against the appellant was unwarranted. The Tribunal set aside the impugned order, ruling that no excess refund had been granted to the appellant, thereby rendering the recovery proceedings unsustainable. Ultimately, the Tribunal allowed the appeal, providing consequential relief to the appellant. The decision highlighted the importance of interpreting the law in alignment with the specific provisions in force during the relevant period, leading to the dismissal of the recovery claim against the appellant.
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