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TMI Blog2024 (7) TMI 472X X X X Extracts X X X X X X X X Extracts X X X X ..... med marketability, Bagasse is not excisable, as it does not pass through the test of manufacture. Accordingly, whatever amount the Appellant-assessee have paid by way of reversal is in the nature of revenue deposit and there is no limitation attracted for refund of such revenue deposit. Bagasse is not a dutiable item and not a manufactured item, as held by the Hon ble Supreme Court, there was no question of any reversal of duty under the provision of Rule 6(3) of CCR, 2004. Under such facts and circumstances, the amount reversed by the Appellant under Rule 6(3) of CCR was in the nature of revenue deposit. The impugned order is set aside - appeal allowed. - MR. P.K. CHOUDHARY, MEMBER (JUDICIAL) Shri S.C. Kamra, Advocate for the Appellant Shri A. K. Choudhary, Authorized Representative for the Respondent ORDER The appeal has been filed by the Appellant assailing the Order-in-Appeal No.MRT/EXCUS/000/APPL-MRT/292/2019-20 dated 19.12.2019 passed by Commissioner (Appeals) CGST, Meerut. This is the second round of litigation before the Tribunal. 2. The facts of the case in brief are that the Appellant is engaged in the manufacture of excisable goods viz., cane sugar and molasses falling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Appellant was sought to be appropriated against the said demand as is clear from para 1.9 of the SCN. The demand was proposed by the Department by pressing Rule 6(3)(i) of CCR, 2004. SCN dated 25.04.2014 issued by the Commissioner in demand proceedings. 3. That the Appellant challenged the SCN before Hon ble Allahabad High Court by way of writ petition. The Hon ble High Court vide order dated 18.08.2015 allowed the writ petition and quashed the SCN dated 25.04.2014 issued by the Commissioner to the Appellant. The High Court relied upon their own judgment in the case of Gularia Chini Mills Others Vs. Union of India reported in 2014 (300) E.L.T. 372 (All.) and subsequently affirmed by the Hon ble Supreme Court vide their judgment dated 24.07.2015 [Union of India Vs. DSCL Sugar Ltd. Others reported in 2015 (322) E.L.T. 769 (S.C.)]. That since the entire proceedings initiated under the SCN were quashed by the Hon ble Allahabad High Court, the Appellant became entitled to consequential relief in respect of proportional CENVAT credit of Rs.39,78,832/- reversed by them and appropriated by the Commissioner in the SCN. That the Appellant filed refund application claiming refund of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at as per directions of the Tribunal, the Appellant approached the Commissioner (Appeals) and filed written submissions in support of refund claim of Rs.39,78,832/- claimed by the Appellant as the refund arose out of order dated 18.08.2015 passed by the Hon ble Allahabad High Court. That the Commissioner (Appeals) has now passed impugned order and he has decided the matter against the Appellant on the following grounds :- (a) The amount reversed by the Appellant from time to time represents the amount of CENVAT credit which was not admissible to them since part of the electricity was not used in the factory but sold by them for a price. Therefore, the contention of the Appellant that refund claim was filed within one year from the date of the order of the High Court is not tenable as no such relief flows from the order dated 18.08.2015 passed by the High Court. (b) As regards order passed by the Lower Authority sanctioning refund of CENVAT credit under similar circumstances for the subsequent period March, 2014 to Dec, 2014, the order passed by the subordinate Adjudicating Authority could not be made the basis for allowing refund of amount which had been reversed voluntarily by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ship or the aircraft in which such goods are loaded, leaves India, or (ii) if the goods are exported by land, the date on which such goods pass the frontier, or (iii) if the goods are exported by post, the date of despatch of goods by the Post Office concerned to a place outside India; xx xx xx (ec) in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, the date of such judgment, decree, order or direction; (f) in any other case, the date of payment of duty. 8. Since the Appellant filed the refund claim on 04.03.2016 i.e. within 6 months from the date of Hon ble High Court s order (18.08.2015), the Appellant s claim was within the statutory period of one year from the relevant date as specified in Section 11B of CEA, 1944. The Commissioner(Appeals) erroneously held that refund claim in respect of amounts voluntarily reversed during the period in dispute is barred by limitation of time. That since in the generation of electricity (non-excisable goods), the Appellant have used bagasse which itself was non-dutiable nor manufactured product, the provisions of Rule 6(3) calling for reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he issue is no more res integra and is squarely covered by the decision of the Tribunal in the case of Triveni Engineering Industries Ltd. vs. CCE, Lucknow reported in 2018 (363) E.L.T. 331 (Tri.-All.). I find that Hon ble Supreme Court in the case of Union of India vs. DSCL Sugar Ltd. 2015 (322) E.L.T. 769 (S.C.) that Bagasse being only an agricultural waste and not being a result of any process, not covered in definition of manufacture under Section 2(f) of the Act and there being no Chapter note or Section note in the Central Excise Tariff declaration process in respect of Bagasse as amounting to manufacture. Thus, notwithstanding the amendment in 2008 in Section 2(d), creating a fiction of deemed marketability, Bagasse is not excisable, as it does not pass through the test of manufacture. Accordingly, whatever amount the Appellant-assessee have paid by way of reversal is in the nature of revenue deposit and there is no limitation attracted for refund of such revenue deposit. Reference is also invited to the ruling of Hon ble Allahabad High Court in the case of CCE vs. M/s Kisan Sahakari Chini Mills Ltd. reported at 2014 (302) E.L.T. 346 (All.) wherein also it has been held that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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