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2018 (1) TMI 272 - HC - Service TaxRefund of unutilized CENVAT credit - Goods sold by a DTA Unit to a 100% EOU unit - Rule 5 of CCR 2004 - monetary limit - Held that - The issue is now covered by the decision of this court in the case of The Commissioner of Central Excise & Service Tax V/s M/s Gulshan Chemicals Ltd, A 595, Industrial Area, 2018 (1) TMI 197 - RAJASTHAN HIGH COURT where it was held that the appeal is of less than ₹ 20,00,000/- tax effect and covered by latest circular F.No.390/Misc./163/2010-JC/Pt Government of India - Central Board of Excise & Customs fixes the monetary limit below which appeal shall not be filed in the High Court as ₹ 20,00,000/- - refund allowed - appeal dismissed - decided against Revenue.
Issues Involved:
1. Whether the learned CESTAT erred in allowing the refund claim of CENVAT Credit in respect of unutilized CENVAT Credit of inputs for Goods sold by a Domestic Tariff Area (DTA) Unit to a 100% Export Oriented Unit (EOU) contrary to Rule 5 of Cenvat Credit Rules, 2004. Issue-wise Detailed Analysis: Issue 1: Refund Claim of CENVAT Credit The appellant challenged the Tribunal's judgment dismissing the department's appeal regarding the refund claim of unutilized CENVAT Credit for inputs sold by a DTA Unit to a 100% EOU. The court framed the question of law to determine if the CESTAT erred in allowing such refunds contrary to Rule 5 of the Cenvat Credit Rules, 2004. The court referred to its decision in a similar case (D.B. Central/Excise Appeal No. 51/2015) where it upheld the Tribunal's decision allowing the refund. The Tribunal had decided two appeals together, addressing substantial questions of law regarding the entitlement to refunds despite the bar of limitation under Section 11B of the Central Excise Act and the sustainability of the Commissioner's review order. Relevant Case References: 1. Union of India v. Inani Builders and Commissioner Central Excise v. Shive Builders: The Tribunal held that rejection of the refund claim on the ground of unjust enrichment was not sustainable. 2. Shravan Banarasilal Jejani v. Commissioner of C. Ex. Nagpur: The court observed that if service tax was erroneously paid, the provisions of Section 11B of the Central Excise Act, 1944, would not apply. 3. Andrew Telecom (I) Pvt. Ltd. v. Commissioner of Cus. & C. Ex. GOA: The court held that refund claims must be filed within one year from the relevant date as per Section 11B. 4. Jubilant Enterprises P. Ltd. v. Commissioner of C. Ex. Mumbai: The court ruled that if service tax was not required to be paid, Section 11B's limitation provisions would not apply. 5. Suchitra Components Ltd. v. Commissioner of Central Excise, Guntur: The Supreme Court held that a beneficial circular should be applied retrospectively. Monetary Limit and Circulars: The court also considered the CBEC Circular dated 30th December 2016, which set the monetary limit for filing appeals at ?20,00,000. Given that the tax effect in the present appeal was less than this limit, the appeal was dismissed as not pressed, though substantial questions of law were left open for future examination. Conclusion: The appeal was dismissed based on the precedent set by previous cases and the CBEC Circular, which provided that appeals with a tax effect of less than ?20,00,000 should not be filed. The court concluded that the Tribunal's decision to allow the refund claim was consistent with established legal principles and the CBEC Circular.
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