2018 (5) TMI 195 - AT - Central Excise

Recovery of excess Refund claimed by the appellant - excess self credit taken by the appellant - N/N. 56/2002-CE dated 14/11/2002 - Held that - Admittedly, the appellant has not claimed refund of Cenvat Credit available to them. In that circumstances, it is revenue neutral situation, therefore, there was no requirement to issue show-cause notice to the appellant. It is the case of the revenue itself that they were not required to pay duty, therefore, the excess amount paid by the appellant is merely a deposit not a duty. Hence, the provisions of Section 11A of the Act, is not applicable to the case. In that circumstances, the appellant is not required to pay the excess refund claimed by them. Appeal allowed - decided in favor of appellant.

Summary

Issues:
- Availment of Cenvat Credit on inputs
- Allegation of erroneous refund and excess self credit
- Application of Section 11A of the Central Excise Act, 1944

Analysis:

Issue 1: Availment of Cenvat Credit on inputs
During the period under review, the appellant, engaged in manufacturing cement, failed to avail Cenvat Credit on certain inputs used for production. This non-availment led to the payment of excess duty by the appellant, as they were entitled to adjust the Cenvat Credit against their final product duty liability. The appellant later surrendered their registration certificate, prompting an audit that revealed the discrepancy in Cenvat Credit utilization.

Issue 2: Allegation of erroneous refund and excess self credit
The appellant contended that the excess duty paid was due to their inadvertent failure to claim Cenvat Credit, resulting in a revenue-neutral situation as they had taken self credit of duty paid in cash. The appellant argued that since they were not required to pay the duty in question, the provisions of Section 11A of the Act, pertaining to recovery of short paid duty or erroneous refunds, should not apply. The Revenue, however, asserted that the appellant had indeed paid less duty due to the non-availment of Cenvat Credit, leading to excess self-credit and necessitating the return of the differential amount to the department.

Issue 3: Application of Section 11A of the Central Excise Act, 1944
The Tribunal examined Notification No.56/2002-CE, which stipulates that duty paid in cash is refundable to the assessee. Given that the appellant had not claimed a refund of the Cenvat Credit available to them, the Tribunal deemed the situation to be revenue-neutral. Consequently, the Tribunal concluded that the excess amount paid by the appellant was akin to a deposit and not a duty liability. As a result, the provisions of Section 11A of the Act, which govern the recovery of unpaid or erroneously refunded duty, were deemed inapplicable to the case. Thus, the Tribunal set aside the impugned order, allowing the appeal filed by the appellant with any consequential relief.

This detailed analysis of the judgment highlights the key issues of Cenvat Credit utilization, erroneous refund claims, and the application of relevant provisions under the Central Excise Act, 1944, leading to the ultimate decision in favor of the appellant.