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TMI Blog2018 (7) TMI 246X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory provisions of Refund. The appellant erroneously debited the amount from their RG-23A Part-II account and on the basis of the direction of the officers who conducted the Audit. The appellant filed applications for refund/return of the amount on 20.04.2011 as per directions of the Assistant Commissioner by letter dated 29.12.2010. In such situation there is no reason to reject the refund claim. Appeal allowed - decided in favor of appellant. - Appeal Nos EX/76777/2016 & Ex/75882/2017 - FO/A/076039-76040/2018 - Dated:- 9-5-2018 - SHRI P. K. CHOUDHARY, JUDICIAL MEMBER Shri K. K. Banerjee, Advocate for the Appellant (s) Shri K. Chowdhury, Suptd. (D.R.) for the Respondent (s) ORDER Per Shri P. K. Choudhary : Briefly stated the facts of the case are that the appellants are engaged in the manufacture of bulk drugs namely Paclitaxl, Irinotecan etc. classifiable under Chapter 29 of the Central Excise Tariff Act, 1985. They were clearing dutiable and exempted goods and availed CENVAT Credit under the CENVAT Credit Rules, 2004. They cleared the exempted goods in terms of Rule 6 of Cenvat Credit Rules, 2004 on payment of the amount of 10% of the value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I Sl. No. 036 dated 27.04.2009 as per the instruction of the Central Excise Revenue Audit team and they debited 10% of the value of the exempted goods in respect of the returned goods valuing ₹ 1,75,000/- along with interest of ₹ 72,115/-. Thereafter, the appellant by letter dated 07.12.2010 requested the Assistant Commissioner to permit them to re-credit the amount. The Learned Counsel submitted that the Assistant Commissioner by its letter dated 29.12.2010 informed the appellant that the permission could be given for re-credit by way of sanction of refund under Section 11B of the Central Excise Act, 1944. The appellant submitted refund applications dated 20.04.2011, which was rejected by the lower authorities. 7. On perusal of the impugned order, I find that the Commissioner (Appeals) proceeded on the basis that the goods were removed from the factory on 16.06.2007 and 26.12.2008 and the same were returned on 03.04.2009. Central Excise Revenue Audit team visited their factory in the month of September 2010. The Refund claim applications were filed on 20.04.2011. The Commissioner (Appeals) observed that refund claims were filed after more than three and half years h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore neither the rules relating to Modvat credit nor Section 11B of the Act will apply to this payment. The learned advocate also referred to the Tribunal decision in the case of Suparna Chemicals Ltd. v. C.C.E, Mumbai - 2006 (194) E.L.T. 46 (Tribunal) = 2006 (72) RLT 180 (CESTAT-Mum) wherein it was held that once the credit is found to be admissible the assessee can take the credit on his own if the same was incorrectly reversed by them on export clearance. 4 .Considering the submissions made by both the sides, I find that the decision of the Apex Court and the Tribunal decision in the case of Preena Cables Albert Devid are not relevant to the present circumstances of the case as the facts were different. The Tribunal decision in the case of Century Rayon was on a different footing as in that case the credit was not allowed by the Superintendent and therefore the appellants could not have taken the same on its own. 11. Rule 57CC of the erstwhile Central Excise Rules, 1944 is similar to Rule 6 of the Cenvat Credit Rules, 2004. The Tribunal in the case of Mothersons Sumi Systems Limited Vs. Commissioner of Central Excise, Noida 2007 (208) ELT 209 (Tri-Del) obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that they were eligible for Cenvat credit, inasmuch as furnace oil was an input as defined under the Rules, based on which, the assessee issued a letter dated 25th April, 2005 indicating its intention to again make the reversal of its Cenvat credit entries and also enclosing the original invoice bills. 6. In this view of the fact, we find that the show cause notice was wrongly issued on a wrong premise that no permission was taken or that original documents were not filed. In fact, we find that the appellant had not only intimated the department about its intention but also had filed the necessary documents. The letter indicated the details of the description of the goods, the invoice bills and the credit to be taken. This was in consonance with the provisions of Rule 9. If the authority had any objection they should have immediately asked the appellant for further clarifications, which in the instant case was not done. 7. The contention of the respondent that an application for refund of duty was 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 cre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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