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TMI Blog2024 (12) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... whereby this Tribunal has observed that Sulphur being a by-product emerges during the course of manufacture of final product, cannot be subjected to Rule 6(3)(b) of the Cenvat Credit Rules, 2002 and erstwhile Rule 57CC / 57AD(2)(b) of the Central Excise Rules, 1944. On rejection of the refund claim, the matter reached before this Tribunal and this Tribunal categorically held that refund is admissible to the appellant but remanded the matter to the adjudicating authority to examine the issue of unjust enrichment. Both the authorities below have travelled beyond the scope of the remand order of the Tribunal and both authorities re-examined the admissibility of credit on merit whereas observation of the Tribunal on merit was that 8% of the val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DR. D. M. MISRA This is an appeal filed against Order-in-Appeal No.164/2011 dated 01.12.2011 passed by the Commissioner of Central Excise (Appeals), Mangalore. 2. Briefly stated the facts of the case are that the appellant are engaged in the manufacture of petroleum products and availed cenvat credit on the inputs used in the manufacture of final products. During the course of manufacture of final products, Sulphur, a by-product emerges which were cleared by the appellant at NIL rate of duty. Consequently, as per the provisions of Rule 6(3)(b) of the Cenvat Credit Rules, 2002 and Rule 57CC / 57AD(2)(b) of the erstwhile Central Excise Rules, 1944, they reversed 8% of the sale value of Sulphur by debiting their cenvat credit account. Later, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 8% of the sale value of the Sulphur emerged as by-product during the relevant period; however, remanded the matter only for the purpose of scrutinising the refund claim to address the issue of unjust enrichment. It is his contention that the findings of the authorities below on the issue of non-reversal of cenvat credit is travelling beyond the scope of the remand order; hence not sustainable. Also, the learned advocate has categorically submitted that after filing the refund claim on 29.09.2003 and subsequent personal hearing, they have filed a letter dated 21.10.2004 informing the Department that they reversed an amount of Rs.5,27,132/- debiting their cenvat credit vide Entry No.650 dated 06.10.2004 in respect of chemicals used in Sulp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been later upheld by the High Court of Madras reported as 2014(304) ELT A16(Mad.)]. 4. Learned AR for the Revenue has reiterated the findings of the learned Commissioner(Appeals). 5. Heard both sides and perused the records. 6. The short issue involved in the present appeal for consideration is whether the refund claim of Rs.1,17,14,846/- filed by the appellant pursuant to the order of this Tribunal on merit, is admissible to the appellant. 7. We find that the refund claim was filed by the appellant subsequent to the decision of this Tribunal in the case of IOC Ltd. (supra), whereby this Tribunal has observed that Sulphur being a by-product emerges during the course of manufacture of final product, cannot be subjected to Rule 6(3)(b) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s applied. The said principle has been followed by this Tribunal in the case of Hwashin Automotive India Pvt. Ltd. (supra) whereunder it is held that amount reversed under Rule 6(3) of Cenvat Credit Rules, 2002 would not come under the procedure prescribed under Section 11B of the Central Excise Act, 1944. Consequently, the principles of unjust enrichment could not be made applicable for the payment made under Rule 6(3)(b) of the Cenvat Credit Rules, 2002 and Rule 57CC / 57AD(2)(b) of the Central Excise Rules, 1944. Also on scrutiny of the relevant sample invoices for Sulphur for the period in dispute, it is noticed that the amount of 8% had not been recovered by the appellant from their customers. No contrary evidence has been referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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