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TMI Blog2007 (10) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Modvat scheme. The dispute was finally resolved vide Final Order No.1262/2000 dated 05.09.2000 of the Chennai Bench of the Tribunal. The Tribunal decided that the impugned goods were covered by Notification No. 46/94-CE dated 01.03.94 and Notification No.52/95 dated 16.03.95. Assessee claimed refund of the duty paid pursuant to the final order. Claim was for an amount of Rs.64,72,809/- paid in RG23A and Rs. 25,58,995/- paid from PLA. The claim was rejected as being barred by unjust enrichment and limitation vide Assistant Commissioner's order No.207/2003 dated 21.08.03.The Commissioner (Appeals) allowed FTP's appeal and decided that the refund claim was not barred by limitation nor would involve unjust enrichment vide his order No.88/2004(SCN)-Try-II dated 31.03.04. The Cestat vide Final Order No.302/05 dated 3.03.05 decided that the refund claim was not barred by limitation or attracted unjust enrichment. As the order dated 21.08.03 of the original authority rejecting the refund claim had not considered captive consumption of inputs and unjust enrichment, department filed appeal against that order on those grounds. Disposing the appeal, Commissioner (Appeals) concurred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Modvat scheme. In his view the eligibility of Modvat credit could be taken up only while sanctioning the refund and the same had not merged with earlier orders as contended. He relied on the decision of the Tribunal in CCE, Pune III Vs. Solar Busiforms Ltd. [2007-TIOL-298-CESTAT MUMAI]. The Tribunal had decided in that case that when the final product was found to be not liable to duty after clearance on payment of duty, refund was admissible only to the extent the duty was paid from PLA as the input credit taken was not admissible. As regards the interest due, the Commissioner (Appeals) decided that the same was admissible only with reference to the date of order of the Hon'ble High Court in terms of Section 11 BB of the Central Excise Act '44. 5. The impugned order had decided the admissibility of refund to the extent of Rs. 64,72,809/- paid from RG 23 A and the interest due on the entire refund claimed. Before us the Ld. Counsel for FTP argued that proceedings to reject the entire amount of refund claimed had attained finality in the decisions of the Tribunal and the Hon'ble High Court. It was incorrect for the Commissioner to consider sanction of refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Solar Busiforms Ltd. [2007-TIOL-298-CESTAT MUMAI] in defence of the impugned order. 8. We have studied the records and the submissions by both sides. In CCE, Pune III Vs. Solar Busi Forms Ltd. [2007-TIOL-298-CESTAT MUMAI] cited by the SDR , the Tribunal had decided that refund of input credit availed when the assessee paid duty on final products was not to be allowed when it was decided later that the goods were exempt. Essentially the facts of that case are similar to those of the instant case. However the order cited does not say if in that case proceedings had been initiated by department in time to recover the inadmissible credit. We find that rejection of the refund claim for utilized Modvat credit amounts to disallowing the credit initially taken as irregular if the refund was admissible otherwise. It has been decided by the Cestat and the Hon'ble High Court in this case that the assessee's claim did not suffer from the refund entailing unjust enrichment or the claim being hit by time bar. On merits there is no dispute that the entire refund was due to the assessee. Therefore the refund claim could be rejected only if the Modvat credit availed by the assessee w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sible should have been launched. We agree with the propositions so made. 8.2. The Bangalore Bench of the CESTAT followed the above decision and observed in its decision in GOLDSTONE TELESERVICES Vs COMMISSIONER OF C. EX., HYDERABAD vide Final Order No. 1915/2006, dated 16-11-2006 in Appeal No. E/619/2006 as follows: 5. The appellant was compelled by the Revenue to pay Central Excise duty on the cable jointing kits though they contested the issue. While paying the Central Excise duty, they had availed Modvat credit. Later, the Hon'ble Andhra Pradesh High Court decided that the cable jointing kits are not excisable. Consequent to the decision of the Andhra Pradesh High Court, the appellants claimed refund of the Central Excise duty paid. The refund claim was rejected by the lower authority. The Commissioner (Appeals) held that the appellants were entitled only for the refund of duty paid through PLA and not through Modvat account. He observed that the appellants were not entitled to Modvat credit. The appellants approached the CESTAT and the CESTAT in the decision quoted supra has held that once the High Court has held that the cable jointing kits are not exigible, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under sub-section (2) of section 11B to any applicant is not refunded within three months from the date of receipt of application under sub-section (1) of that section, there shall be paid to that applicant interest at such rate, [not below five per cent] and not exceeding thirty per cent per annum as is for the time being fixed [by the Central Government, by Notification in the Official Gazette], on such duty from the date immediately after the expiry of three months from the date of receipt of such application till the date of refund of such duty : Provided that where any duty ordered to be refunded under . . Explanation . - Where any order of refund is made by the Commissioner (Appeals), Appellate Tribunal [National Tax Tribunal] or any court against an order of the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise], under sub-section (2) of section 11B, the order passed by the Commissioner (Appeals), Appellate Tribunal or, as the case may be, by the court shall be deemed to be an order passed under the said sub-section (2) for the pu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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