9911796707
TMI Blog2024 (10) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... elf-credit of the differential amount, of Rs 1 ,06,59,994/- on their own, for the period April 2010 to December 2010, in the month of June 2011. Subsequently, in the month of July 2011, the appellants paid Rs. 1, 68, 60, 174/- as the total amount of duty; out of this an amount of Rs. 34, 86, 309/- was paid from the self-credit taken in June 2011. Since this credit was treated as cash in PLA, the appellant filed a separate refund claim of the amount of Rs.34,86,309/-; the appellant submitted a statement of calculations to the Deputy Commissioner of Central Excise, Jammu on 9/6/2011 for necessary verification and for confirming the amount of refund. The Deputy Commissioner, however, opined that the appellants were not entitled to self-credit of the differential amount, as they were not a petitioner in the batch of writ petitions decided by the High Court by its judgment dated 23/12/2010, in the case of Reckit Benckiser 2011 (269) ELT 194 (J&K); the Deputy Commissioner rejected the refund of Rs. 1, 06, 59,994/- for which self-credit had been taken by the appellants Modern Papers, vide Order dated 8/12/2011; Deputy Commissioner also rejected the refund claim of Rs. 34, 86, 309holding t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder consideration and such credit could be used to pay excise duty on clearances of excisable goods. * Manufacturer taking self-credit of the amount of refund due, the manufacturer was required to submit a statement to the ACCE/DCCE by the 15th of the month in which self- credit has been taken intimating the total duty payable, duty paid by utilization of Cenvat credit or otherwise and the amount of self-credit taken. * The ACCE/ DCCE was empowered to examine the amount of self-credit taken and disallow any excess taken and recover it, if not paid by the assessee on intimating him to do so, as if it is a recovery of the duty of excise erroneously refunded. 4. Learned Counsel submits further that some of the manufacturers in the State of J&K challenged the vires of the amending notifications issued in 2008 through writ petitions filed in the J&K High Court; Hon'ble High Court, by judgment dated 23/12/2010 Reckit Benckiser(supra), quashed Notifications No. 19/2008-CE and No. 34/2008-CE and directed that the petitioners would be entitled to amount of refund as per the provisions that existed before issue of these amending notifications. The appellant therein had also filed simil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... propriated from the refund amount admissible to the assessee. He relies on the following cases: * M/s Panacea Biotec Ltd. - 2023 (12) TMI 301- CESTAT-Chandigarh. * Stella Rubber Works - 2013 (3) TMI 299- KARNATAKA HIGH COURT. * Mars International - 2012 (11) TMI 381- CESTAT MUMBAI. * M/s Dharampal Satyapal Ltd. - 2018 (7) TMI 402- CESTAT KOLKATA. * Day and Co.- 2013 (293) ELT 262 (Tri. Del.). 7. Shri Pawan Kumar, assisted by Shri Narinder Singh and Shri Shivam Syal, learned Authorized Representatives for the Department, reiterates the findings of the impugned orders. He submits that the Adjudicating Authority has rejected the differential refund claim of Rs.1,06,59,994/- which was taken by the appellants as self-credit and rejected the refund of Rs.34,86,309/- as per the provisions of 2C(e) of the Scheme and have issued a speaking order; both the Adjudicating Authority and the Appellate Authority have given reasons for coming to the conclusion arrived at. He submits that in view of the judgment of Hon'ble Apex Court in the case of VVF Ltd. - 2020 (372) ELT 495 (SC); the validity of the subsequent notifications restricting the self-credit/ refund is correct; Adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Excise or the Deputy Commissioner of Central Excise, as the case may be, after such verification, as may be deemed necessary, shall determine the amount correctly refundable to the manufacturer and intimate to the manufacturer by the 15th day of the next month to the month in which the statement under clause (d) has been submitted. In case the credit taken by the manufacturer is in excess of the amount determined, the manufacturer shall, within five days from the receipt of the intimation, reverse the said excess credit from the account current maintained by him. In case, the credit taken by the manufacturer is less than the amount of refund determined, the manufacturer shall be eligible to take credit of the balance amount; (f) in case the manufacturer fails to comply with the provisions of clauses (a) to (e), he shall forfeit the option, to take credit of the amount calculated in the manner specified in sub-paragraph 2 in his account current on his own, as provided for in clauses (a) to (c); (g) the amount of the credit availed irregularly or availed of in excess of the amount determined correctly refundable under clause (e) and not reversed by the manufacturer within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the wrongful credit that has been availed as above. However, the alleged wrongful credit has not been held to be so in a proper manner. Therefore, the rejection of cash refund of Rs.34,86,309/- for the month of July 2011 is not legally correct. However, in view of the Hon'ble Apex Court's decision, the appellants shall not be entitled to the entire refund. The refund needs to be restricted to 34% in terms of the Notification No.19/2008 dated 27.03.2008. 11. Coming to the other appeal No. E/52758/2014, we find that the authorities have appropriated an amount of Rs.1,06,59,994/- along with interest of Rs.7,52,476/- from the refund of Rs.2,98,91,511/- sanctioned to the appellants. The appellants submit that the said amount appropriated is not arising out of any confirmed demand against the appellants. In fact, as per our discussion above, no notice under Section 11A of the Central Excise Act, 1944 as required under Para 2C(g) of the Notification No.19/2008 has been issued. Therefore, we find that such an appropriation has no legal basis in view of the case law cited by the appellants. 12. In view of the above: (i) Appeal No. E/52756/2014 is allowed; out of the claim of refund of R ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
