9911796707
TMI Blog2023 (10) TMI 1251X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidered the eligibility for refund except at the threshold, it would only be appropriate to restore the claim before the original authority for fresh disposal. Dis-entitlement of the appellant to benefit of notification no. 30/2004-CE dated 7th July 2004 for non-compliance with the substantive condition of eligibility owing to which demand of 22,07,315 was confirmed in relation to availment of exemption for the period from September 2008 to February 2009 - HELD THAT:- The remand order of the Tribunal is specific as is the report of the jurisdictional central excise authorities. However, the order of the original authority that was before the first appellate authority to culminate in the impugned order predates the remand ordered by the Tribunal and the defence thereof was not before the original, or first appellate, authority. Eligibility to benefit of notification no. 30/2004-CE dated 9th July 2004 owing to reversal of credit - HELD THAT:- The factual aspects of eligibility both by reversal of CENVAT credit as well as existence of facility for manufacture of staple fibre in the light of decisions of the Tribunal have not been examined by the lower authorities. With the claim for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the second issue in dispute did preclude entitlement to refund and, thereby, obviating any need to decide on the preferment of the claim at that stage which is the ground for rejection by the competent authority. The appellant had filed the claim for refund even as the issue was pending for appellate remedies. It has been held by the Tribunal in Persistent Systems Ltd v. Commissioner of Central Excise & Service Tax, Pune - III [2016 (43) S.T.R. 117 (Tri. - Mumbai)] that '6. Justification afforded for the act of returning the claim appears to flow from it being 'premature.' Implicit in such a description is the existence of a time period prior to which no claim can be preferred. Again, the statute does not prescribe a near deadline for filing claims. 'Premature' is, therefore, inexplicable and incomprehensible in the context. Such a description would be apt only if an application has been made before taxes or duties were paid which is plainly an absurdity. It would appear that the two lower authorities chose to attach a status to the refund claim that is not contemplated in the statute. 7. Besides statutory impropriety and fallacious description, a consummation disconnect is als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e form and substance of a disposal in adjudication is vested exclusively in the authority before whom the claim has been preferred and that is a responsibility which should have been responsibly discharged. The order of the original authority has merged with that of the first appellate authority and the merged order lacks legal sanctity for reason cited supra. Accordingly, the return of the refund claim is set aside and the original authority is directed to decide on the refund claim afresh in accordance with the law.' Thus, it is not open to the authority empowered under section 11B of Central Excise Act, 1944 to dispose off a claim for refund on grounds of such being premature in any circumstance whatsoever. As the competent authority has not considered the eligibility for refund except at the threshold, it would only be appropriate to restore the claim before the original authority for fresh disposal. 4. On the issue of dis-entitlement of the appellant to benefit of notification no. 30/2004-CE dated 7th July 2004 for non-compliance with the substantive condition of eligibility owing to which demand of ₹ 22,07,315 was confirmed in relation to availment of exemption for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tow. In view of Chapter Note 1 to Chapter 55, tow of a length exceeding 2 metres are classified under Heading 55.01/55.02 and tow of a length not exceeding 2 metres are classified under Heading 55.03/55.04 as 'staple fibres' not carded, combed or otherwise processed for spinning. However, both these products are covered under Chapter 55 titled as 'man-made staple fibres'. In the General Rules for the interpretation of the First Schedule to the CET, it is stated that the titles to the Chapters are provided for easy reference only. If for easy reference, the 'chapter 55 manmade staple fibres' applies to Tow (55.01/55.02) as well as unprocessed staple fibre (55.03/55.04), then, for the same reason the term 'staple fibre' in the Notification No. 30/04 would apply to 'tow and unprocessed staple fibre' covered under Headings 55.01 to 55.04. In other words, for broad classification purposes if the Legislature has considered the term 'staple fibre' to include tow and unprocessed staple fibre, then, in the absence of any intention to the contrary, the same broad meaning has to be given to the term "staple fibre" used in the Notification No. 30/04. 51. There is nothing in the Notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue of eligibility to benefit of notification no. 30/2004-CE dated 9th July 2004 owing to reversal of credit, Learned Counsel referred to settled decision of the Tribunal in Global Wool Alliance Pvt Ltd v. Commissioner of Central Excise, Thane-I [2017 (358) ELT 1218 (Tri-Bom)] and Learned Authorized Representative agreed that reversal of credit would suffice to qualify in terms of circular no. 858/16/2007-CX dated 8th November 2007 of Central Board of Excise & Customs (CBEC). He, however, contended that record of reversal had not been ascertained and needs to be.
8. We find that the factual aspects of eligibility - both by reversal of CENVAT credit as well as existence of facility for manufacture of 'staple fibre' in the light of decisions of the Tribunal - have not been examined by the lower authorities. With the claim for refund restored to the original authority and with these two aspects having to be examined afresh, the issues would have to be go back for re-adjudication. Accordingly, the impugned order is set aside and all the disputes restored to the original authority for a fresh determination.
(Order pronounced in the open court on 11/10/2023) X X X X Extracts X X X X X X X X Extracts X X X X
|
