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TMI Blog2018 (10) TMI 1064X X X X Extracts X X X X X X X X Extracts X X X X ..... AT credit lying in an assessee’s account creates an infallible and indefeasible right, which in the present case is indispensable and undeniable; however, to the extent of making payment of the corresponding cess, if any, payable on or after that date, as categorically stipulated in 1st and 2nd proviso to Rule 3 (7) (b) of the CENVAT Credit Rules, 2004. Since the CENVAT Credit Rules, the repository of rights of an assessee to avail credit of the duty or other sums paid on inputs does not entail or even envisage refund of such credit in cash and encashment cannot be claimed as a matter of course. It can also not be asserted that an assessee is entitled to or has an ingrained or vested right to claim refund of Education Cess and Secondary and Higher Secondary Education Cess or any other duty paid in accordance with the law dehors the CENVAT Credit Rules, 2004. Tribunal has committed no error of law in holding that the appellant cannot claim cash refund or encashment of the unutilized and unavailed amount of Education Cess and Secondary and Higher Secondary Education Cess, lying in its credit - appeal dismissed - decided against appellant. - D.B. Central/Excise Appeal No. 82/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would not be permitted to be used for payment of Excise Duty, as no such provision had been introduced to this effect while doing away with the Cess. The appellant took up the matter to the Customs, Excise Service Tax Appellate Tribunal (hereinafter referred to as the Tribunal ) by way of filing a further appeal. The Tribunal also affirmed the orders passed by the authorities below vide its order dated 30.05.2018, holding inter-alia that there is no basic provision either in the Excise Act or under the CENVAT Credit Rules, 2004, permitting the refund of the accumulated credit. The Tribunal also observed that the Credit is admissible only for utilization towards the payment of duty on the final product and such credit can never be encashed by the assessee. Feeling aggrieved of the order dated 30.05.2018 passed by the Tribunal, the appellant has preferred the present appeal, in a bid to claim encashment/ cash refund of the amount of Education Cess and Secondary and Higher Secondary Education Cess of ₹ 7,08,933/-, lying in its CENVAT credit account on 1.03.2015. Mr. Johari, learned counsel for the appellant assailing the order passed by the Tribunal argued that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have been made under this sub-section as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub-section (2) substituted by that Act. Rule 8 of Central Excise Rules, 2002 :- Manner of payment. - (1) (2) The duty of excise shall be deemed to have been paid for the purposes of these rules on the excisable goods removed in the manner provided under sub-rule (1) and the credit of such duty allowed, as provided by or under any rule. (3) ... (4) The provisions of section 11 of the Act shall be applicable for recovery of the duty as assessed under rule 6 and the interest under sub-rule (3) in the same manner as they are applicable for recovery of any duty or other sums payable to the Central Government. Explanation .- For the purposes of this rule, the expressions duty or duty of excise shall also include the amount payable in terms of the CENVAT Credit Rules, 2004. (5) (6) Rule 3 of CENVAT Credit Rules, 2004 :- CENVAT Credit . - (1) A manufacturer or producer of final products or a provider of taxable service shall be allowed to take credit (hereinafter referred to as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cture of final product on or after the 1st day of March, 2015 can be utilized for payment of the duty of excise leviable under the First Schedule to the Excise Tariff Act; Provided also that the credit of balance fifty percent. Education Cess and Secondary and Higher Education Cess paid on capital goods received in the factory of manufacture of final product in the financial year 2014-15 can be utilized for payment of the duty of excise specified in the First Schedule to the Excise Tariff Act: Provided also that the credit of Education Cess and Secondary and Higher Education Cess paid on input services received by the manufacturer of final product on or after the 1st day of March, 2015 can be utilized for payment of the duty of excise specified in the First Schedule to the Excise Tariff Act. An appraisal of the above quoted statutory provisions and law relating thereto makes it clear that Section 11B of the Act of 1944 provides for refund of the duty of Excise, if such duty has been erroneously or wrongly paid; subject, however, to certain conditions and restrictions, including that the incidence thereof has not been passed on to the customer. After ensuring that there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Scheme of the Rules of 2004, it will not be out of place to refer to Rule 5 A of the CENVAT Credit Rules, 2004, which provide for refund of CENVAT credit. Rule 5 A of the Rules of 2004 provides for refund of CENVAT Credit subject to procedure, conditions and limitations as may be specified by the Central Government. An analysis of the Rules of 2004 shows that refund of CENVAT Credit in relation to duty paid on input or input service has been provided only in cases of export of the final products, or in cases where the duty is exempt or subject to nil rate of duty. Except for such a contingency, there is no provision for grant of refund or encashment of CENVAT Credit, in the entire framework of the Rules of 2004. Even while amending the Rules of 2004 and substituting the proviso to Rule 3 (7) (b) of the Rules of 2004, despite dispensing with the Education Cess and Secondary and Higher Secondary Education Cess, the Central Governmental has not thought it appropriate to provide for refund of the amount of such Cess, lying unutilised. In this view of the matter, in our considered view, the rule making authority has consciously not provided for refund of CENVAT credit. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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