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TMI Blog2024 (3) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... nd capital goods on which Cenvat credit was taken by the appellant. Needless to say that such inputs were used to manufacture goods which were cleared therefore claiming the exemption under this notification. To claim this exemption, the appellant should NOT TAKE Cenvat credit on capital goods or inputs. When the appellant cleared the goods after 8.7.2004 availing the benefit of the notification, such goods may have been manufactured before or after this date. If the goods were manufactured before this date- either fully or partly- they would have been lying as finished goods or as work in progress on 8.7.2004 and Cenvat credit would have been availed on the inputs and capital goods which had gone into their manufacture. They can be cleared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment by the proper officer to appeal against. In AMAN MEDICAL PRODUCTS LTD. VERSUS COMMISSIONER OF CUSTOMS, DELHI [ 2009 (9) TMI 41 - DELHI HIGH COURT ] and MICROMAX INFORMATICS LIMITED VERSUS UNION OF INDIA ORS. [ 2016 (4) TMI 1235 - DELHI HIGH COURT ], Delhi High Court held that in cases where there is no assessment or order by the proper officer, refunds can be claimed without any appeal to the Commissioner (Appeals). These and several other cases were appealed to the Supreme Court by the Revenue. In this appeal, the appellant had filed the refund application without appealing against its own self-assessment and therefore no refund can be sanctioned - Appeal dismissed. - HON BLE MS. BINU TAMTA , MEMBER ( JUDICIAL ) And HON BLE MR. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Special Importance) Act, 1957 (58 of 1957) and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 7/2003-Central Excise dated the 1st March 2003, published in the Gazette of India vide number G.S.R. 137(E), dated 1st March 2003, the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the excisable goods of the description specified in column (3) of the Table below and falling within the Chapter, heading No. or sub-heading No. of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) (hereinafter referred to as the Central Excise Tariff Act), specified in the corresponding entry in column (2) of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd lying in balance on the day it opted for the exemption notification; B) There is no requirement under the exemption notification to reverse the Cenvat credit already availed and lying in balance. 6. While these arguments appear attractive at first sight, a closer look would show otherwise. It is true that there is no mechanism under Cenvat credit Rules to recover the credit lying in balance. In fact, if the appellant had not opted for the exemption notification, it could have enjoyed the entire Cenvat credit. Not availing the Cenvat credit on inputs or capital goods (which are otherwise available to an assessee) is NOT a part of Cenvat Credit Rules, but is a condition of the exemption notification. It is only to fulfil the condition, tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification only if no Cenvat credit is availed (or if it has already been availed on the inputs bought before this date, by reversing it). 9. The appellant s submission that it had no obligation to reverse the Cenvat credit under the notification is not correct for two reasons. First, such an interpretation of the notification would require us to read the words after opting for the notification in the proviso which we cannot do and we have to read the notification as such and interpret it strictly giving any benefit of doubt to the Revenue as per the law laid down by a five member bench of Hon ble Supreme Court in Commissioner of Customs (Import) Mumbai versus Dilip Kumar 2018 (361) E.L.T. 577 (S.C.) . 10. Second, it will also lead to absurd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment. Therefore, unless the assessment order is appealed against and is modified, no refund can be sanctioned. 13. The ratio of Flock India was followed by the Supreme Court in Priya Blue Industries versus Commissioner of Customs (Prev) 2004 (172) E.L.T. 145 (S.C.) , which was a Customs matter. It needs to be pointed out that unlike a SCN for demand of duty, sanction of refund is not an adjudication procedure. The officer sanctioning the refund cannot sit in judgment or modify the assessment by the assessing officer. Since every Bill of Entry is an assessment by itself, Bills of Entry can and are often appealed against. 14. Later, the self-assessment and selective re-assessment by the officers were introduced initially as a practice. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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