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TMI Blog2020 (2) TMI 1166X X X X Extracts X X X X X X X X Extracts X X X X ..... t account could be treated as a mode of payment of duty at the time of removal of goods, we fail to understand how the limitation under Section 11B of the Act could be denied when only restoration of such claim is only by way of reversal of that debit entry only upon the returning such CENVAT Invoices and the vendors not having availed any CENVAT credit, being the undisputed facts. The learned Revenue authorities could not deny the adjustment entry of restoration of CENVAT credit in the present case irrespective of limitation. Rule 4(5)(a)(iii) of the Cenvat Credit Rules, 2004 is clear and it permits the Assessee to credit the CENVAT account book, if the goods are received back after 180 days. Therefore, in the face of a clear Rule permitting the said adjustment entry, merely because the Assessee made a claim in prescribed Form R under Rule 127, his claim of adjustment entry could not be refused by the authorities below. The appeal filed by the Assessee deserves to be allowed and the same is accordingly allowed - questions of law are answered in favour of the Assessee and against the Revenue. - C.M.A.No.1907 of 2018 - - - Dated:- 21-2-2020 - Dr. Justice Vineet Kothari And ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount by way of restoration of Cenvat credit by filing the prescribed application in Form No.R. The said refund application was rejected by the adjudicating authority and that order was upheld by the learned Tribunal on the ground of limitation of six months under Section 11B of the Act. 4.The learned counsel for the Appellant/Assessee has submitted that the limitation prescribed under Section 11B of the Act does not apply when instead of claiming the refund in cash, the Assessee merely claims the restoration of the Cenvat credit. Since the Assessee paid the excise duty in question at the time of removal of the goods only by debiting the Cenvat credit account and not in actual cash payment, he did not claim any cash refund, but only claimed the restoration of the Cenvat credit vide letters dated 11 September 2008 and 06 October 2008, in response to the Show Cause Notice issued by the adjudicating authority. 5.He relied upon the following the three judgments of the High Courts, including one rendered by the Coordinate Bench of this Court, which have upheld a similar contention on behalf of the Assessee. 6.On the other hand, the learned counsel for the Revenue submitted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... envat 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 duty falling under Section 11B of the Central Excise Act, 1944 and that the assessee was to comply with the provisions of Section 11B of the Act. The view of the Tribunal that the assessee should seek reversal in the appropriate judicial forum, if the assessee was aggrieved by the earlier order herein does not arise at all. 10.The Division Bench of Allahabad High Court in Krishnav Engineering Ltd. V. CESTAT, [2016 (331) E.L.T. 391 (All.) also similarly held in para 7 that where it is not a case of refund of duty but a case of reversal of an entry in the boo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 Act for claiming refund of duty. Consequently, in our opinion, the provision of Section 11B of the Act is not applicable. 11.By yet another decision, a Division Bench of the Calcutta High Court in Commissioner of Customs Excise, Kolkata-II V. Rahee Industries Limited [2011 (263) E.L.T. 225 (Cal.)] also reiterated the same position in the following words. 6.In the context of the aforesaid submissions we now have carefully read the findings of the learned Tribunal. It appears to us that the learned Tribunal has found on fact that there is no dispute about cancellation of the advance licence and there was no requirement on the part of the respondent to reverse the credit and as such already reversed credit was liable to be credited back to them. The learned T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal has erred in applying the limitation of the Section 11B of the Act in the present case, where the refund of duty was not claimed in cash as such, but only by the restoration of Cenvat credit by the Assessee. When a debit to the Cenvat credit account could be treated as a mode of payment of duty at the time of removal of goods, we fail to understand how the limitation under Section 11B of the Act could be denied when only restoration of such claim is only by way of reversal of that debit entry only upon the returning such CENVAT Invoices and the vendors not having availed any Cenvat credit, being the undisputed facts. The learned Revenue authorities could not deny the adjustment entry of restoration of Cenvat credit in the present case irrespective of limitation. Merely because the Assessee laid its claim of refund by his moving an application in prescribed Form No.R under Rule 127, being a procedural requirement of the law, the substantive right of Assessee cannot be defeated by the Revenue authorities except at the peril of violating Article 265 of the Constitution of India. 14.There is considerable force in the contention raised by the learned counsel for the Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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