9911796707
TMI Blog2006 (3) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... 36/- on capital goods, which was disallowed by the original authority as per order dated 10-12-1998, where after the credit was expunged (when called upon to do so by the Range Superintendent) partly by debit in RG 23C Part II (Rs. 1,25,000/-) and partly by debit in PLA (Rs. 91,836/-), both on 17-4-2000 and under protest. Subsequently order-in-original dated 10-12-1998 was taken in appeal to the Commissioner (Appeals), and the appeal was allowed with consequential relief as per order-in- appeal dated 29-4-2003. The assessee filed a refund claim for Rs. 2,16,836/- with the original authority on 24-6-2004, which was sanctioned but the amount was ordered to be credited to the Consumer Welfare Fund in terms of Section 11B (2) of the Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would not be applicable to the claim for refund of the amount so pre-deposited. Secondly, ld. Counsel has argued, the amount expunged on 17-4-2000 being the credit of duty paid on excisable goods used as capital goods, the claim for its refund would attract clause (c) of the proviso to Section 11B (2) ibid. It has been argued that, though there is no mention of capital goods in this provision, which refers to inputs, going by legislative intent, One could discern that the provision would be equally applicable to refund of credit of duty on excisable goods used as inputs and capital goods. Ld. Counsel has also relied on the Tribunal's decision in CCE v. Kanpur Plastipack Ltd. [2001 (127) BLT 826 (Tri.-Del.)], wherein it was held that the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tuation is normally covered by clause (d) of the above proviso. The case law cited by Id. Counsel is not a precedent for the present case inasmuch as, on the aspect of utilisation of Modvat credit, the cited decision is sub silentio. Reverting to the facts of the present case, capital goods credit to the extent of Rs. 91,836/- had been utilised for payment of duty on final product as evidenced by the fact that, when called upon to expunge that credit, the assessee paid the amount from PLA. Burden of duty to this extent was passed on to the buyer of the final product. Hence, by virtue of clause (d) of the proviso to Section 11B (2) of the Act, the claim for refund of Rs. 91,836/- was not liable to be allowed in cash and the said amount was l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of time. Moreover, the expunction was "under protest", whereas Section 35F of the Central Excise Act providing for pre-deposit contemplated only voluntary deposit. Hence the amount of Rs. 2,16,836/-expunged by the assessee on 17-4-2000 cannot be considered to be pre-deposit for appeal against order-in-original dated 10-12-1998. At the same time, I am not impressed by the reliance placed by the appellant on the Tribunal's decision in the case of Christine Hoden (I) Pvt. Ltd. (supra). In that case, apparently, the claim for refund made by the party was not of any amount of input duty credit or capital goods credit. However, the appellant's averment to the effect that the duty credit reversal was shown by the assessee as "expenditure" and suc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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