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TMI Blog2003 (11) TMI 424X X X X Extracts X X X X X X X X Extracts X X X X ..... y had been availed under Rule 56A or 57A. To meet the Customs Duty exemption requirement, M/s. VTL, were required to reverse credit entries along with interest charges in terms of amnesty scheme announced under the VABAL scheme by the Department and in accordance with Trade Notice No. 9/97, dated 11-1-97. A reversal of credit entries in RG 23A-Pt. II amounting to Rs. 1,05,72,716/- was effected being the credit equivalent to the duty on the inputs, which had gone into the exported products under the VABAL scheme and interest on such sum. These reversals were effected during the period 9-1-95 to 31-1-97. Trade Notice No. 81/97, dated 8-7-97 was issued, requiring that where such credit entries were reversed on actual basis, a certificate should be issued by Cost Accountant appointed under Section 14AA of Central Excise Act, 1944. Accordingly, Cost Accountant was nominated and he submitted a report that the reversal of credit and interest was required to the extent of Rs. 89,96,493/- and interest thereon of Rs. 18,30,737/- for the period 92-93 to 95-96. Therefore, an excess of Rs. 15,75,923/- towards credit and Rs. 2,14,263/- towards interest charges were reversed in excess of the requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submissions made by the appellants in the grounds of appeal as well as the submissions made at the time of personal hearing. The lower authority has rejected the refund claim of the appellants as time-barred. The appellants on the other hand have contested that since they had wrongly availed Modvat credit while also availing the benefit of the VABAL Scheme, they on their own reversed the credit as per the formula enumerated in Commissionerate s Trade Notice No. 81/97, dated 8-7-97. In addition to the reversal of wrongly availed Modvat credit, the appellants had rightly reversed the amount of Modvat credit or not, the concerned Commissioner has appointed a Chartered Accountant under Section 14AA of the Central Excise Act. The appointed Chartered Accountant in his audit report submitted that the appellants had reversed an excess amount than the amount required to be reversed by them. After the submission of the Chartered Accountant s report, the appellants had applied for refund, which has been wrongly rejected by the lower authority as time-barred. It is observed that in this case, initially the appellants had reversed some amount of Modvat credit as per the formula enumerated in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redit under the Central Excise Act and Rules made thereunder. Infact, the relevant notifications issued and the rules framed under Chapter VAA of the Central Excise Rules, 1944 do not permit any such debit against credit entries for discharge of a liability of interest and also does not permit such debit entries from the credit balances in the RG 23A accounts, to render eligibility of exemption from duty under the Customs Act, 1962 or and VABAL Notification No. 203/92. These reversals, effected, pursuant to an Amnesty Scheme, are not under the Central Excise Act or the Rules framed thereunder. Therefore, interpretations being placed of the liability of a refund and applicability of time-limit under Section 11B of the Central Excise Act, 1944 by the ld. DR cannot be accepted. The case laws relied by the DR are found to be not applicable, to reversals, as in this case. (b) It is also found that the word refund under Section 11B has been defined as follows :- refund , includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India. The present debit entries effected or requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He said that correcting arithmetical mistakes and taking correct credit amount are not subject to limitation prescribed under Section 11B of the Act. In this context, Departmental Representative pointed out that if it was only arithmetical mistakes or errors or omissions as urged by the party, the party should have filed permission to appropriate authority for correcting such errors or they would have made correct credit entry on their own in their relevant books and in that case, probably, the position would have been different. Since they have chosen to file refund claim against the excess payment, same is governed by the provisions of Section 11B of the Act. 13. The respondent s Counsel cited a case law including Rane Engine Valves Ltd. v. CCE, Chennai [2003 (153) E.L.T. 92 (Tribunal) = 2002 (52) RLT 66], in support of his contention that assessee is entitled to refund of credit reversed in excess of credit on actual basis and excess interest paid. But none of the case laws referred to and relied upon by the respondent s Counsel dealt with the issue of applicability of provisions of Section 11B of the Act. 14. The Departmental Representative emphatically argued that Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statute. It cannot, therefore, be said that the order passed by the Assistant Collector rejecting the claim on grounds of limitation is in any way unjust or unlawful so as to call for interference in exercise of the powers under Article 226/227. Where a manufacturer avails of short credit, he pays more amount of duty to the Revenue than what he would have paid had he availed of the credit to the extent of maximum permissible limit. Thus in reality it would be a case of payment of excess amount of duty. Therefore, provisions of Section 11B would be applicable even in cases where a manufacturer has availed of short credit. [1988 (37) E.L.T. 478 (S.C.); 1987 (30) E.L.T. 641 (S.C.) relied on. [paras 7, 8] It was also brought to our notice that the view taken by the Gujarat High Court was upheld by the Apex Court while dismissing the appeal as reported in 1997 (94) E.L.T. 470. (iv) In the case of Polymer Paints (supra), Larger Bench of the Tribunal has taken the view that time-limit prescribed under Section 27 of the Customs Act, applicable to refund of excise duty paid due to clerical errors also. (v) In the case of G.S. Auto International Ltd. (supra), it was held that refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, then only course is open to recover that money/deposit through Civil Court subject to limitation under General Limitation Act. Since the Section 11B is the only Section concerned with refund claim and party has filed a refund claim, the Assistant Commissioner was right in rejecting the claim as barred by time. I am in agreement with the arguments advanced by the Departmental Representative that Revenue authorities acting under the Act were bound by the provisions of the statute. Precisely this was the view of the Supreme Court in the case of Collector of Central Excise, Chandigarh v. Doaba Co-operative Sugar Mills reported in 1988 (37) E.L.T. 478 (S.C.) and Supreme Court in the case of Miles India Ltd. v. Assistant Collector of Customs reported in 1987 (30) E.L.T. 641 (S.C.). Since the Tribunal being a creature of the statute, the Tribunal cannot go beyond provisions of the statute and more so relief, if any, cannot be granted on principle of the equity. In the result, the appeal filed by the Revenue is allowed. 16. In view of the aforesaid decisions and since the view has already been expressed in the decisions on the point at issue, I am of the view that if we want to take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il of Amnesty Scheme was required to be verified by Cost Accountant nominated by the Chief Commissioner of Excise. Para 4 of the Circular states as under : In the cases where credit is reversed on actual basis such certificates should be issued only after verification of the records of the exporter by a Cost Accountant nominated by the Chief Commissioner under Section 14A of the Central Excise Act, 1944. It is clear from the above that the correct amount would be known only after verification by the Cost Accountant. The amount reversed by the assessee is the amount it considered was required to be reversed. Obviously, no refund claim could have been filed before verification by the Cost Accountant. Therefore, the time-limit, if any, can run only after the verification by the Cost Accountant and the issue of certificate in this regard. In the present case, there is no dispute that if the time-limit is so counted, the claim would be within time. This Tribunal had an occasion to consider this issue in its Final Order No. 357, dated 10-2-2003 in Appeal No. E/29/2000 filed by M/s. Fertilizers and Chemicals Travancore Ltd. (FACT) 2003 (155) E.L.T. 197. The submission of the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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