9911796707
TMI Blog2017 (3) TMI 355X X X X Extracts X X X X X X X X Extracts X X X X ..... have been wrongly availed which the Tribunal, vide its order dated 27th April 2010, had held to be incorrect recovery to the extent of Rs. 38,73,765/- while remanding the matter for deciding on applicability of bar of limitation to the remaining amount. Refund of the amount held as erroneous recovery was claimed by appellant and allowed by original authority. 2. The impugned order holds that refund clam has been filed under section 11B of Central Excise Act, 1944 and, with the Hon'ble Supreme Court having ruled in Sahakari Khand Udyog Mandal v. Commissioner of Central Excise [2005 (181) ELT 328 (SC)] and in Commissioner of Central Excise v. Parle International [2005 (188) ELT 81 (SC)] that all refund claims must cross the hurdle of 'unjust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h claims to indulge in such absurd exercises. 5. It is, perhaps, this very form of application that persuades the Learned Authorised Representative to claim that appellant did indeed seek a refund and, on that premise, proceeded to cite the decision of the Hon'ble Supreme Court in Commissioner of Central Excise, Chennai-III v. Grasim Industries [2015 (318) ELT 594 (SC)] which held that the passing on of burden of duty or tax may occur even indirectly by inclusion in cost of product without it being evident as duty collected against document of sale. 6. There is no dispute that appellant claims cash refund; nor has the original authority allowed such cash refund. The credit restored by that authority was applied towards other dues of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... VAT credit distinguishable from a claim of refund of duty paid. None of the decisions or judgments have even ventured to hint that restoration of disallowed credit is to be subject to the bar of unjust enrichment. That is an attempt tax officials to graft the judicial determination of cash refunds to restoration of credit without perceiving the two in the conceptual framework. 9. The Hon'ble Supreme Court, in Union of India v. Solar Pesticides [2001 (116) ELT 401 (SC)], has tasked the tax refund authority with the responsibility of ascertaining that the duty levied on raw materials has not found inclusion in the cost of manufacture while disposing off refund claims pertaining to such inputs. In re Grasim Industries, the Hon'ble Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required to be made under Section 11B of the Act does not hold water. It is not a case of refund of duty but a case of reversal of an entry in the books relating to Cenvat credit. We find support on this aspect of a judgment of the Madras High Court in ICMC Corporation Ltd. v. CESTAT, Chennai, 2014 (302) E.L.T. 45, where in similar circumstances the High Court held that the provisions of Section 11B of the Act was not applicable. We find that the appellant originally availed the Cenvat credit, which was allowed but for various reasons it reversed the credit. In our view, it is only an account entry reversal and there is no out flow of funds from the side of the appellant which may result in filing an application under Section 11B of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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