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2022 (4) TMI 87 - AT - Central ExciseRefund of Countervailing duty (CVD) - time limitation - case of Revenue is that right of availment of CENVAT credit was with the appellant since the year 2005 and hence the same should have been availed at the relevant time itself - HELD THAT:- It is true that additional duty levied under section 3 of Customs Tariff Act, 1975 is in the nature of a countervailing duty to protect the interest of the domestic manufacturers and it is permissible under Cenvat Credit Rules, 2004 for it to be treated as Cenvat Credit. However, any refund of unutilized Cenvat Credit can be taken if it fulfils the conditions under section 11B of Central Excise Act, 1944. In the present case, the CVD was paid on 07.03.2005. However the refund in question has been filed pursuant to the Final order of this Tribunal dated 04.10.2017 The relevant date in terms of section 11B of Central Excise Act for the impugned relief, was to be the date of this Final Order. The refund claim has been filed on 18.3.2018, i.e. well within the period of said one year from the relevant date. The appellant has contended that they were not able to utilise the Cenvat Credit during the relevant period. Keeping in view that the certificate of origin was alleged to be incorrect, based whereupon the show cause notice was issued in the year 2005 itself. Nothing has been produced by the department to prove the said allegation. Per contra the Certificate of origin is admittedly on record. Presumption of correctness is attached thereto. Same has not been rebutted by the department. Appellant in addition has produced the documents i.e. invoices etc. - all requirement of section 11B Central Excise Act have been met with by the appellant. Accordingly the appellants are entitled for the refund of CVD along with the interest to be calculated from the date of payment thereof. There being apparent delay on part of the department authority in passing final assessment order. The appellant is held to be entitled to the refund of the CVD with consequential benefits - Appeal allowed - decided in favor of appellant.
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