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2020 (1) TMI 1060 - AT - Central ExciseRefund of pre-deposit - pre-deposit by making reversal of CENVAT credit with interest - time limitation - Section 11B of the Central Excise Act - Appellant submitted that any amount deposited at any time after adjudication should be treated as pre-deposit and consequently the period of limitation prescribed under Section 11B of the Central Excise Act has no application at all. - HELD THAT - In the present case, instead of seeking waiver, the appellant paid the duty, interest and 25% penalty in terms of Section 35F and filed the appeal before the Commissioner (A) who finally allowed the appeal vide its Order dated 22.10.2013. Consequent to the allowing of the appeal of the Appellate Authority, the mandatory pre-deposit made by the appellant in terms of Section 35F of the Central Excise Act was required to be refunded by the Department to the appellant and the said amount was not refunded. Thereafter, the appellant wrote a letter dated 13.07.2017 claiming the amount paid by him at the time of filing the appeal before the Appellate Authority i.e. Commissioner (A). The Department instead of refunding the pre-deposit made by the appellant issued a SCN proposing to deny the refund under Section 11B of the Central Excise Act, 1944 on the point of limitation and consequently rejected the refund under Section 11B being barred by limitation. The impugned order rejecting the refund claim under Section 11B on limitation is not sustainable in law and the same is set aside by allowing the appeal of the appellant - the appellants are entitled to interest on the delayed refund immediately after the expiry of three months from the date of passing of the Order-in-Appeal - Appeal allowed - decided in favor of appellant.
Issues Involved:
1. Denial of CENVAT credit on rejected goods. 2. Rejection of refund claim as time-barred under Section 11B of the Central Excise Act, 1944. 3. Treatment of amounts paid during the pendency of appeal as pre-deposit under Section 35F of the Central Excise Act, 1944. 4. Entitlement to interest on delayed refund. Issue-wise Detailed Analysis: 1. Denial of CENVAT credit on rejected goods: The appellants, manufacturers of PVC Compounds, PVC Master Batch, and LDPE/HDPE, availed CENVAT credit on returned final products under Rule 16 of the Central Excise Rules, 2002. The Department issued multiple Show Cause Notices (SCNs) proposing to deny the CENVAT credit availed on rejected goods for various periods. The Deputy Commissioner confirmed the demands along with interest and penalties. The appellants paid the amounts and filed appeals, which were allowed by the Commissioner (A), but the refund was not processed. 2. Rejection of refund claim as time-barred under Section 11B of the Central Excise Act, 1944: The appellant requested a refund of the amounts paid during the pendency of the appeal. The Department issued an SCN proposing to reject the refund claim as time-barred under Section 11B. The Assistant Commissioner rejected the refund claim on the ground of limitation, which was upheld by the Commissioner (A). 3. Treatment of amounts paid during the pendency of appeal as pre-deposit under Section 35F of the Central Excise Act, 1944: The appellant argued that the amounts paid during the pendency of the appeal should be treated as pre-deposit under Section 35F. The appellant cited various judicial precedents and CBEC Circulars supporting that amounts paid during the appeal process are considered pre-deposits and are not subject to the limitation period under Section 11B. The Tribunal agreed with the appellant's contention, referencing Circular No. 275/37/2K-CX. 8A and Circular No. 802/35/2004-CX, and judicial precedents, including the Bombay High Court's decision in Nelco Ltd. Vs UOI, which was upheld by the Supreme Court. 4. Entitlement to interest on delayed refund: The Tribunal held that the appellant is entitled to interest on the delayed refund. The interest should be calculated from three months after the date of the Order-in-Appeal until the actual payment date, as per the judgment of the Bombay High Court in Nelco Ltd. Vs UOI, and followed by the Delhi High Court in MRF Ltd. Vs Commissioner of Trade and Taxes. Conclusion: The Tribunal set aside the impugned order rejecting the refund claim under Section 11B on limitation grounds. It directed the Department to refund the pre-deposit amounts along with interest from three months after the Order-in-Appeal date until the actual payment date. The appeal was allowed on these terms.
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