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2021 (2) TMI 303 - JHARKHAND HIGH COURTRefund of countervailing duty - Payment of CVD on return / re-import of goods - entitlement to take credit amount of CVD paid by them on return of the goods under Rule 16 of the Central Excise Rules, 2002 - Section 11B of the Central Excise Act - HELD THAT:- It is the Respondent's case that credit of CVD in this case is not admissible as the imported goods are clearly finished goods and cannot be input under the Cenvat Credit Rules, 2004. The appellant while pleading refund of Cenvat Credit under section 11B of C.E.A, 1944 read with Rule 16 of C.E.R, 2002, has neither categorically stated as to what happened to the goods after receipt in the factory, nor enclosed any document as are required to be furnished in terms of section 11B, to establish that the amount of duty of excise and interest paid by him had not been passed on by him to any other person. Evidently, the appellant received the finished goods on re-importation after paying additional duty before the Customs authorities at Kolkata. As such, finished goods were not within the meaning of ‘inputs',as per Rules 3, 4 and 7 of Cenvat Credit Rules, 2004. They were not brought to the factory for being remade, refined, re-conditioned or for any other reason in terms of Rule 16 of C.E.R, 2002. The analysis of the relevant provisions under Section 11B of C.E.A, 1944, Rule 16, 18 and 19 of C.E.R., 2002 and Rule 2, 3, 4, 7 of Cenvat Credit Rules, 2004, discussed above, leave no room of doubt that the receipt of finished goods upon re- importation in the factory of the appellant, as claimed, were not in the form of inputs / raw materials for use in the process of manufacture. As such finished goods were not brought into the factory for being re-made, refined, re-conditioned or for any other reason. If such goods were not inputs or raw materials upon which the assessee was entitled to claim Cenvat Credit upon payment of additional duty (CVD) under Customs Tariff Act, 1975, the assessee could not have claimed refund thereof from the Central Excise Authorities invoking Section 11B of C.E.A, 1944 read with Rule 16 of C.E.R, 2002. The application for refund of countervailing duty is maintainable under section 11B of Central Excise Act, provided it satisfies the conditions prescribed under Cenvat Credit Rules, 2004 as being treated as inputs and under Rule 16 of CER 2002 such goods / inputs have been brought into the factory for being re-made, refined, re-conditioned or for any other reason by the assessee - In the facts of the present case, since return of the finished goods in the factory of the appellant could not qualify as inputs and neither were such goods brought into the factory for re-conditioning, re-making and re- packaging, therefore claim of refund before the Central Excise authorities of additional duty (CVD) was rightly held to be not maintainable. The appellant assessee had not able to establish through accompanying documents and other evidence that such duty has not been passed on by him to any other person, as required under section 11B of Central Excise Act, 1944. Any refund of countervailing duty under section 11B of Central Excise Act, 1944 is maintainable only if the conditions prescribed under Cenvat Credit Rules, 2004 for treating it as inputs are fulfilled and such goods satisfy the conditions prescribed under Rule 16 of C.E.R, 2002. The application for refund of countervailing duty by the appellant under section 11B of Central Excise Act, 1944 was not maintainable - appeal dismissed.
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