9911796707
TMI Blog2025 (4) TMI 1286X X X X Extracts X X X X X X X X Extracts X X X X ..... ade by it? A perusal of the Order-in-Original inter alia reveals that the assessee filed From-R claiming by way of refund an amount of Rs.22,31,16,229/- pertaining to the period March 2016 to June 2017 which, according to them, was inadvertently paid towards "National Calamity Contingent Duty" [NCCD for short] by utilisation of CENVAT credit of basic excise duty, the utilisation of which stood expressly prohibited by virtue of amendment Notification 13/2016 - CE/NT dated 01.03.2016. 2. It appears that the range officer of the concerned division in his verification report, reported that the above claim for refund was hit by time limitation prescribed under Section 11 B of the Central Excise Act, 1944. Accordingly, a Show Cause Notice dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 5. It is an admitted fact that NCCD was required to be paid in cash for the period under dispute, but however, it is the case of the assessee that it had procured various inputs as well as input services on which CENVAT credit was availed and the same was in fact utilized towards discharging its excise duty liability, including towards NCCD at 1% ad valorem in terms of Section 136 of the Finance Act, 2001 was also attracted. The above provision was operative with effect from 01.03.2008 [vide Notification 10/2008 - CE/NT]. The above provision was amended with effect from 01.03.2016 vide Notification 13 - Supra by which 5th proviso was added to Rule 3(4) of the Cenvat Credit Rule, which did not permit the payment of NCCD by utilization of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... positing the same in cash, the passing of the duty element to the customers was of absolutely no consequence. 7. With the amendment to the proviso with effect from 01.03.2016, when it is expected that NCCD was required to be paid only in cash and not by using CENVAT credit, implies that when the same was paid using CENVAT credit, Revenue could not have retained the same but was duty bound to issue a SCN perhaps demanding the proper payment, in cash, as per the amended proviso since, payment of NCCD made in any other manner, other than in cash, could not be considered as a valid payment of NCCD. It is strange that even the FAA has not at all considered or discussed the applicability of various judicial pronouncements relied upon by the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon by both the parties. The period of dispute is March 2016 to June 2017. The Show cause notice proposing to recover the NCCD is issued on 04.04.2018, in response to which the appellant remitted the payments on 13.06.2018 and 14.06.2018. Vide the letter dated 10.07.2018, the appellant filed Form-R seeking refund of the debit made erroneously towards NCCD, for the period March 2016 to June 2017. From the above, it is clear that the said application for refund is made after the expiry of one year from the relevant date and therefore going by the land mark judgement of the Constitution Bench of Hon'ble Apex Court in the case of Mafatlal Industries Ltd. Vs Union of India - 1997 (89) ELT 247 (SC), any application for refund which could only be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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