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TMI Blog2019 (11) TMI 1126X X X X Extracts X X X X X X X X Extracts X X X X ..... d duty paying documents. This observation is factually wrong, vitiating the impugned order. Further, it is found that the impugned order is cryptic and non speaking. The appellant have rightly taken cenvat credit under intimation to Revenue - appellant shall entitle to consequential refund in terms of Section 142(3) of the Central Goods and Services Tax Act, 2017 - Appeal allowed - decided in favor of appellant. - Excise Appeal No. 53296 of 2018-SM - FINAL ORDER NO. 51540/2019 - Dated:- 25-11-2019 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) Shri Shrey Bhardwaj and Ms. Ananya Sarkar, Advocates for the appellant Shri K. Poddar, Authorised Representative for the respondent ORDER Brief facts are that the appellant is engaged in the manufacture of P P Medicines and Bulk Drugs falling under Chapter Heading No. 29 and 30 of Central Excise Tariff Act, 1985. Appellant exported finished goods under claim of rebate of duty paid on finished goods, under Rule 18 read with Notification No. 19/04-CE (NT) dated 6.9.2004. Appellant paid central excise duty on CIF value (inclusive of freight and insurance) for certain exports. On intimation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... export without payment of duty. Alternatively, the appellant is entitled to clear goods on payment of duty and claim rebate under Rule 18 of Central Excise Rules, 2002 read with Notification No. 19/2004-CE. Thus, payment of duty on clearance of goods for export entitled an assessee for grant of rebate of duty paid on such excisable goods or duty paid on materials used in the manufacture or processing of such goods. The policy of the Government is not to export taxes so that the Indian goods can compete in the international market. Pursuant to filing of rebate claim, the appellant was informed by the adjudicating authority that the rebate is restricted to FOB value (which is lower than CIF value). Accordingly, appellant corrected the amount of rebate claim in their application to the extent of FOB value. Thus, there is no question of sanction of lower amount of rebate, as both the assessee and the Department are in agreement. In the circumstances, the excess amount of duty debited (at CIF value) amounting to ₹ 3,92,594/- was taken credit as the same was not payable by way of duty, and thus was in the nature of revenue deposit. Under the facts, appellant had given proper intim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt entry reversal and factually there is no outflow of funds from the assessee to result in filing application under Section 11B of the Central Excise Act, 1944 claiming refund of duty. The contention of the Revenue that even in reversal of the entry there is bound to be an unjust enrichment has no substance or based on any legal principle, since, what is availed off by the assessee is only a credit on the duty paid on the services rendered. Further, the assessee is entitled to take note of as per Rule 6(5) of the Cenvat Credit Rules, 2004. As there is no dispute of the fact that a sum of ₹ 3,21,308/- available as Cenvat credit was in respect of input services, which are given under Rule 6(5) of the Cenvat Credit Rules, 2004. When that being the case, in respect of those services specifically mentioned under Rule 6(5) of the Cenvat Credit Rules, 2004 as it existed during the relevant period viz., 2004-2006 getting the reversal of the entry is in tune with its stand taken, which was accepted by the Tribunal in the earlier round of litigation. 14 . We do not find any good ground to hold that it was a case of refund of duly falling under Section 11B of the Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Goods and Services Tax Act, 2017, the said amount may be ordered to be disbursed in cash. Further, attention is drawn to para 6 of the rebate sanctioning order-in-original No. LTU/Mum/CX/GLT-4/Lupin/R-41/2017-18, whereby it is observed the Central Excise duty paid on goods exported against these ARE-I s will be ₹ 2,44,224/- (as per FoB value) instead of ₹ 2,47,052/- (at CIF value) and the excess paid duty will be considered as deposit with Government and will be required to be refunded in the manner in which it has been paid. Since in the instant case the duty have been paid by debit in the cenvat credit account, it requires to be refunded as credit into the cenvat credit account . 7. Opposing the appeal, learned Authorised Representative relies on the impugned order. 8. Having considered the rival contentions, I find that it is accepted by the Revenue, as pointed out by the Department from para 6 of the order-in-original, that appellant is entitled to refund of the excess paid duty, which is in the nature of deposit with the Government. Further, in view of the law laid down by the Madras High Court wherein an assessee is entitled to take re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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