2021 (11) TMI 893 - AT - Central Excise

Refund of CENVAT Credit - Credit under protest - rejection on the ground of time limitation - HELD THAT - The reversal of CENVAT credit on 29.10.2005 was under protest, ifso facto, as the same was reversed during the pendency of the adjudication proceedings and the appellant had contested the amount in dispute. The refund claim is within time as the same is filed within 2 months from the date of order-in-appeal. The adjudicating authority is directed to grant refund of the said amount in cash, as required under the Transitional Provisions of CGST Act, and is further directed to pay interest @ 12 p.a. from the date of reversal of the cenvat credit amount till the date of payment, (as per Section 35 FF, which provide for interest from the date of deposit till the date of refund) - Appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Rejection of refund claim by the Commissioner (Appeals) - Whether in accordance with law?

Analysis:
The appeal revolved around the rejection of a refund claim by the Commissioner (Appeals) concerning the reversal of cenvat credit by the appellant, a cement manufacturer. The Revenue had objected to the cenvat credit claimed by the appellant, leading to a show cause notice. Subsequently, the appellant reversed the cenvat credit amount under protest pending adjudication. The Adjudicating Authority allowed the credit in dispute initially, but the Revenue challenged this decision before the Commissioner (Appeals), who rejected the appeal and upheld the allowability of the credit. The appellant then applied for a refund of the reversed cenvat credit, which was rejected by the Assistant Commissioner as time-barred, citing that the refund claim should have been filed within one year from the date of the original order. The appellant argued that the refund claim was filed within two months from the date of the order-in-appeal, which was well within time, considering that the first appeal in Revenue matters is an extension of the adjudicating proceedings. The Adjudicating Authority found that the reversal of cenvat credit was under protest and that the refund claim was timely filed within two months from the order-in-appeal, thereby allowing the appeal, setting aside the impugned order, and directing the grant of the refund amount in cash with interest. Additionally, the department was directed to pay litigation costs to the appellant.

In conclusion, the Tribunal allowed the appeal, overturning the rejection of the refund claim by the Assistant Commissioner. The decision was based on the finding that the reversal of cenvat credit was under protest and that the refund claim was filed within the permissible time frame. The Tribunal directed the adjudicating authority to grant the refund amount in cash along with interest as per the relevant provisions. Moreover, the department was instructed to pay litigation costs to the appellant.