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TMI Blog2024 (8) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... hat Rule 5 of the CCR provides for refund of Cenvat credit in cash in respect of the goods exported. It is a settled legal position in this case that the appellant was entitled for Cenvat credit of Rs. 76,72,000/-. Instead of claiming refund under Rule 5 of CCR, the appellant claimed it citing Rule 18 of CER. The Assistant Commissioner also wrongly sanctioned it quoting Rule 18 of CER. However, there cannot be any dispute about the fact that the appellant was entitled to refund of the said amount under Rule 5 of CCR because it pertained to exports and the appellant was a 100% EOU. The appellant was not required to only transition the credit through TRAN-I. Section 142 (3) of the CGST Act provides for cash refund. The appellant was entitled to refund of Cenvat credit of Rs. 76,72,000/- under Rule 5 of CCR. This substantive benefit of the appellant cannot be taken away because the appellant had quoted the wrong rule in filing its refund claim and the Assistant Commissioner also sanctioned the refund quoting the wrong rule. Time Limitation - HELD THAT:- It was the Revenue which agitated the matter and appealed to the High Court. It is true that without waiting for the judgment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reflected in its returns. A show cause notice [SCN] dated 03.02.2009 was issued to the appellant proposing to deny rebate of Rs. 7,88,553/- and appropriate the amount which was already paid by the appellant towards the recovery of this rebate. It was also proposed to disallow Cenvat credit of Rs. 76,72,000/- and recover it Rule 14 of Cenvat Credit Rules, 2004 [CCR] read with section 11A of the Central Excise Act, 1944 [Act] along with interest under section 11AB. It was also proposed to impose penalties under Rule 15/15A of CCR. These proposals confirmed by the Commissioner by order dated 26.02.2010. 5. Aggrieved, the appellant filed an appeal before this Tribunal, which was allowed by way of remand by order dated 07.02.2017 with the following observations :- Having considered the full facts and background, as narrated above, we find that the present order cannot be legally sustained. Accordingly we set aside the same. The matter has to go back to the original authority to examine all the above mentioned issues and take a holistic view about correctness of credit initially taken by the appellant in terms of applicable provisions of law, more specifically Rule 5 of Cenvat Credit Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant had paid duty, it was entitled to take Cenvat credit of the duty paid on inputs. All credit was taken on the basis of documents prescribed under Rule 9 of the CCR. (3) The appellant had not transitioned the balance of Cenvat credit by filing of Form TRAN-I as Input Tax Credit [ITC] under the CGST Act. Instead, it filed this refund claim, which it was entitled to, as per the CEA read with section 142 (4) of the CGST Act. (4) Therefore, the Assistant Commissioner was correct in sanctioning the refund and the Commissioner (Appeals) erred in reversing this decision by the impugned order. The appeal may be allowed and the impugned order may be set aside. 9. Submissions on behalf of the Revenue :- Rebate of duty paid on export goods or duty paid on material used in the manufacture of exported goods is permissible under Rule 18 of CER, 2002. This rule does not allow refund of Cenvat credit which is governed by Rule 5 of the CCR. The appellant was not seeking refund of Cenvat credit under Rule 5 of CCR. (2) The refund claim filed by the appellant was not a claim of refund of duty paid on the material used in the manufacture of export goods. (3) The duty liable to be paid on the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vice of the department, the appellant re-paid the entire amount of rebate given to it along with interest. Thereafter, the appellant continued to pay duty on exported goods debiting the amount on its Cenvat account. The appellant took Cenvat credit of the duty which it had paid on the final products amounting to Rs. 76,72,000/-. The department sought to deny the Cenvat credit and this Tribunal in the first round of litigation remanded the matter to the Commissioner to take the holistic view of the matter and decide. 13. The final order of this Tribunal remanding the matter to the Commissioner was assailed by the department before the High Court of Delhi. By order dated 13 December 2017, the High Court upheld the order of this Tribunal. In pursuance of the Tribunal s order, the Commissioner by order dated 21.03.2017 dropped the proceedings against the appellant and thereby allowed the Cenvat credit taken by the appellant. 14. Thereafter, the appellant filed refund claims under Rule 18 read with section 11B, which were sanctioned by the Assistant Commissioner by his order dated 06.05.2019. 15. This order of the Assistant Commissioner was assailed by Revenue before the Commissioner (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nctioned refund under Rule 18 of the CER read with section 11B. Revenue s objections to this sanction of refund was on two counts: firstly, the claim was time barred ; secondly, refund could not have been sanctioned under Rule 18 of CER and there was no claim of refund under Rule 5 of CCR. Revenue does not dispute that the appellant was entitled to Cenvat credit after the decision of the Commissioner in the remand proceedings and after the judgment of the High Court upholding the remand order of this Tribunal. It is the case of Revenue that such Cenvat credit would have only been transitioned under TRAN-I as ITC under GST. No refund could have been sanctioned under Rule 18 and no refund could have been sanctioned according to the Revenue even under Rule 5 of Cenvat Credit Rules because there was no such claim. 19. According to the appellant, it was entitled to credit and it was entitled to refund also. The delay in filing refund claim occurred because the matter was agitated by the Revenue before High Court and it was awaiting the decision of High Court in the matter. 20. It is undisputed that Cenvat credit was available to the appellant after the order of the Commissioner was pass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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