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2019 (2) TMI 853 - AT - Central Excise100% EOU - Refund claim - suo moto availment of CENVAT Credit - Rule 8(3A) of Central Excise Rules, 2002 - Held that - The appellant did not pay the excise duty on the DTA sale for the period February 2012 to December 2012 to the extent of ₹ 26,14,940/- and on being pointed out, the appellant paid the duty on 15.2.2013 by using the CENVAT credit but the Department raised the objection of payment through CENVAT credit in view of Rule 8(3A) of the Central Excise Rules. Thereafter, the appellant paid the duty by cash and took re-credit of the CENVAT credit account, for which the Department issued the show-cause notice. Once Rule 8(3A) has been declared as unconstitutional which means that the payment made by the appellant on 15.2.2013 itself was correct and there was no requirement to pay the same again in cash but having been paid the same by cash again, the appellant is entitled to get back this amount paid by cash and as per the provisions of Section 142 of CGST Act, the appellant is entitled to get the refund in cash if the same arises on account of the litigation. Refund allowed - appeal allowed - decided in favor of appellant.
Issues involved:
1. Eligibility of appellant to avail CENVAT credit for duty default. 2. Admissibility of suo moto re-credit by appellant. 3. Constitutionality of Rule 8(3A) of Central Excise Rules. 4. Entitlement of appellant to cash refund under Section 142 of CGST Act. Detailed Analysis: 1. The first issue revolves around the appellant's eligibility to avail CENVAT credit for duty default. The appellant, registered as a 100% EOU engaged in mining and export of iron ore and manganese ore, had defaulted in payment of Central Excise duty towards DTA clearances. The appellant initially paid the duty through CENVAT credit but later paid the same amount in cash. The Commissioner (A) rejected the appeal, leading to the present appeal challenging the decision. 2. The second issue pertains to the admissibility of suo moto re-credit by the appellant. The appellant argued that they were entitled to take re-credit suo moto, citing precedents such as the case of Motorola India Pvt. Ltd. and the decision of CESTAT Mumbai in the case of M/s. Raptakos Brett & Co. Ltd. vs. CCE. The appellant contended that Rule 8(3A) was declared unconstitutional by the High Court of Gujarat, supporting their claim for re-credit without filing a refund application. 3. The third issue addresses the constitutionality of Rule 8(3A) of the Central Excise Rules. The appellant argued that since Rule 8(3A) was declared unconstitutional by the High Court of Gujarat, the payment made by the appellant using CENVAT credit was correct, and there was no need to make a cash payment. This argument played a crucial role in determining the appellant's entitlement to a refund. 4. The fourth issue concerns the appellant's entitlement to a cash refund under Section 142 of the CGST Act. The appellant relied on Section 142(8) of the CGST Act, claiming that any refund arising from previous litigation should be refunded in cash. The Tribunal, after considering the submissions and precedents, held in favor of the appellant, allowing the appeal and granting the appellant the cash refund of the amount paid twice, along with any consequential relief. In conclusion, the Tribunal's judgment favored the appellant, emphasizing their entitlement to the cash refund due to the unconstitutional nature of Rule 8(3A) and the admissibility of suo moto re-credit based on legal precedents. The decision highlighted the importance of legal provisions and judicial precedents in determining the rights of the parties involved in the appeal.
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