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TMI Blog2023 (5) TMI 933X X X X Extracts X X X X X X X X Extracts X X X X ..... duty paid statement is received, the burden then shifts to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central excise, as the case may be, to make the required verification and refund the amount of duty paid, by 15th of the next month - The Notification dated 25.04.2007 does not stipulate that the manufacturer entitled to exemption would be required to file a formal application for refund. Identical controversy arose in the case of Vernerpur Tea Estate [ 2018 (2) TMI 1883 - GAUHATI HIGH COURT ], wherein challenge given to rejection of claim for duty refund under an analogous Notification dated 08.07.1999 was examined by the Division Bench of this Court, where it was held that statements of duty paid submitted in RT-12 returns by the appellant was substantial compliance of Clause 2(a) of the Notification and there was no need for it to submit a separate statement of the duty paid and claim refund. The language of the notification dated 08.07.1999 under consideration in the said case is pari materia to the notification dated 25.04.2007. The Division Bench of this Court held in unequivocal terms that the only requirement for a manufacturer to cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdictional adjudicating authority dated 08.08.2012, whereby the application dated 08.01.2012 filed by the appellant herein claiming refund of central excise duty paid for the period from July, 2010 to February, 2012 under the exemption notification dated 25.04.2007 was partly allowed and partly denied. 2. The short issue involved in this appeal is whether the excise duty refund claimed on behalf of the appellant under the exemption notification dated 25.04.2007 for the period from July, 2010 to February, 2012 was liable to be rejected on the ground of being time barred. The claim for refund was laid by the appellant herein on the basis of Paragraph 3(a) of the Notification No.20/2007-Central Excise, dated 25th April, 2007 issued by the Government of India, Ministry of Finance, exempting the goods specified in the First Schedule to the Central Excise Tariff Act, 1985, from the duty of excise leviable thereon under the said Act equivalent to the amount of duty paid by the manufacturer of exempted goods other than the amount of duty paid by utilization of CENVAT credit under the CENVAT Credit Rules, 2004. Paragraph 3(a) of the Exemption Notification dated 25.04.2007 is extract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod, i.e. from July, 2010 to December, 2011, could not be accepted as the same was time barred. Mr. Choudhury submitted that the adjudicating authority as well as the appellate authorities committed error apparent in law in rejecting the claim of duty refund accruing to the appellant under Notification dated 25.04.2007 from the date it started paying excise duty on the specified goods manufactured in the exempted region. He submitted that the only condition required to be fulfilled under the notification for claiming exemption was that the manufacturer should submit the statement of duty paid to the Assistant Commissioner or the Deputy Commissioner of Central Excise, as the case may be, by the 7th of the next month in which the duty has been paid other than the amount of duty paid by utilisation of CENVAT credit under the CENVAT Credit Rules, 2004. He urged that no sooner the manufacturer submitted the statement of duty paid by the 7th of the next month as a consequence, by virtue of Clause 3(a) of the Notification, the onus of refunding the duty paid shifted on the jurisdictional authority of the Central Excise Department. He pointed out that the appellant commenced the manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant seeking refund of excise duty was time barred. The refund was required to be claimed by filing an application before the 7th day of each following month after production was commenced and duty was paid, whereas, admittedly, the claim application of the appellant was a consolidated one for the period from July, 2010 to February, 2012. Thus, as per Mr. S.C. Keyal, the adjudicating authority was absolutely justified in approving the claim applications for the months of January and February, 2012 only and rejecting it for the earlier months as the same was time barred. He submitted that Clause 3 of the Notification dated 25.04.2007 makes it clear that application for refund would not be entertained unless filed by the 7th day of the following month, on which the duty was paid. In support of his contentions, Mr. Keyal placed reliance on the Division Bench judgment of this Court in the case of Lukwah Tea Estate Vs. Commissioner of CGST and Central Excise, reported in (2022) 0 Supreme (Gau) 665. He urged that in this case, the delayed application claiming refund filed by the assessee was rejected and the Division Bench affirmed the decision of the department, hence the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to get duty refund is that the statement of duty paid for each month, other than the amount of duty paid by utilization of CENVAT credit under the CENVAT Credit Rules, 2004 should be submitted to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central excise, as the case may be, by the 7th of the next month for which the duty has been paid. As per Clause 3(b), once the duty paid statement is received, the burden then shifts to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central excise, as the case may be, to make the required verification and refund the amount of duty paid, by 15th of the next month. The Notification dated 25.04.2007 does not stipulate that the manufacturer entitled to exemption would be required to file a formal application for refund. Upon a pertinent query being put, Mr. Keyal was not in a position to point out any such procedure/prescribed format for duty refund in the exemption notification of the Central Excise Act and the Rules. 9. Identical controversy arose in the case of Vernerpur Tea Estate (supra), wherein challenge given to rejection of claim for duty refund under an analogous Notification d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... units existing before the 24th day of December, 1997 but which have undertaken substantial expansion by way of increase in installed capacity by not less than twenty five per cent on or after the 24th day of December, 1997. 9. A bare reading of the above quoted clauses of the Notification makes it clear that the appellant was first required to prove its eligibility for notified exemptions by establishing that the three industrial units had undertaken substantial expansion of not less than 25% on or before 24th day of December, 1997 and then file every month s statement of duty paid from the account current to the Assistant Commissioner. And, if these two conditions were fulfilled, the appellant was entitled to refund of the amount of duty paid. It is not in dispute that the Industrial Unit has undertaken increase by more than 25%. Clause 2(a) of the Notification only says that the manufacturer shall submit a statement of the duty paid by 7th of next month in which the duty has been paid from the account current. The Notification nowhere mandates the manufacturer to submit a separate claim for refund of duty paid. The appellant has admittedly been submitting statements ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07. The Division Bench of this Court held in unequivocal terms that the only requirement for a manufacturer to claim benefit of exemption of excise duty under the notification was to prove its eligibility for such claim and to submit statement of duty paid, to the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central excise, as the case may be, by the 7th of the next month for which the duty had been paid. The Division Bench held that once the appellant was found to be eligible for exemptions and refund of duty paid, denial of benefit of exemptions and refund on the ground of delay cannot be permitted. 11. Thus, the controversy at hand is clearly covered by the ratio of the judgment of the Division Bench in the case of Vernerpur Tea Estate (supra). The judgment in the case of Lukwah Tea Estate (supra) relied upon by Mr. Keyal is clearly distinguishable because in that case the issue regarding claim for exemption of duty laid by the assessee had already been decided against the assessee by the High Court and the subsequent claim was found to be barred by the principle of res judicata. It was further held that the absence of limitation prescribed under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Account Current as well as the CENVAT Credit Account. The eligibility of the appellant to get refund under the exemption notification is not disputed by the respondents because the refund was sanctioned to the appellant by the jurisdictional authority for the months of January and February, 2012 by the impugned order dated 08.02.2012. It may be true that as the appellant having started the manufacturing process in July, 2010 by setting up a new unit, may have been delayed in acquiring the requisite eligibility certificate but no sooner the eligibility criteria for duty refund was satisfied, the appellant became entitled to claim duty refund because, undisputedly, the statement of duty paid by the appellant for the month of July, 2010 to December, 2011 was duly verified as is reflected from the above-quoted observations made by the jurisdictional authority at Paragraph 7 of its order dated 08.08.2012 (supra). Merely because the assessee submitted the application for eligibility on 08.01.2012, the claim for duty refund could not be defeated as being time barred. At best, the assessee could be denied the interest, if any accrued on the excise duty paid for the period from July, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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