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2024 (3) TMI 180 - AT - Central ExciseRefund of the Cenvat credit reversed - Refund of duty paid on self assessment basis - benefit of exemption notification no. 30/2004-CE dated 9.7.2004 rejected - HELD THAT:- There is no dispute that the appellant was eligible to the benefit of this Exemption notification and had, in fact, availed its benefit. The condition for this exemption notification is that no Cenvat credit on inputs or capital goods has been taken. On 8.7.2004, the appellant had inputs and capital goods on which Cenvat credit was taken by the appellant. Needless to say that such inputs were used to manufacture goods which were cleared therefore claiming the exemption under this notification. To claim this exemption, the appellant should NOT TAKE Cenvat credit on capital goods or inputs. When the appellant cleared the goods after 8.7.2004 availing the benefit of the notification, such goods may have been manufactured before or after this date. If the goods were manufactured before this date- either fully or partly- they would have been lying as finished goods or as work in progress on 8.7.2004 and Cenvat credit would have been availed on the inputs and capital goods which had gone into their manufacture. They can be cleared either without availing the benefit of the notification or by availing the benefit of the notification after reversing the Cenvat credit taken. Similarly, if the goods were manufactured after 8.7.2004, their inputs may have been bought after this date or may have already been bought and were lying in stock. They can be cleared under the notification only if no Cenvat credit is availed (or if it has already been availed on the inputs bought before this date, by reversing it). In Collector of Central Excise versus Flock India [2000 (8) TMI 88 - SUPREME COURT] the Assistant Collector had, after examining the classification lists filed by Flock India (as assessees were required to during the relevant period), rejected the classification claimed and passed an order changing the classification. This order of the Assistant Collector was appealable but the assessee had not appealed to the Collector (Appeals). Instead, Flock India directly filed a refund application for the differential duty. Supreme Court held that refunds can be claimed if they flow from the assessment and not so as to modify the assessment. Therefore, unless the assessment order is appealed against and is modified, no refund can be sanctioned. The self-assessment and selective re-assessment by the officers were introduced initially as a practice. The question which arose in such cases was if the goods were cleared without any assessment by the proper officer, can a refund be claimed because there is no order or assessment by the proper officer to appeal against. In AMAN MEDICAL PRODUCTS LTD. VERSUS COMMISSIONER OF CUSTOMS, DELHI [2009 (9) TMI 41 - DELHI HIGH COURT] and MICROMAX INFORMATICS LIMITED VERSUS UNION OF INDIA & ORS. [2016 (4) TMI 1235 - DELHI HIGH COURT], Delhi High Court held that in cases where there is no assessment or order by the proper officer, refunds can be claimed without any appeal to the Commissioner (Appeals). These and several other cases were appealed to the Supreme Court by the Revenue. In this appeal, the appellant had filed the refund application without appealing against its own self-assessment and therefore no refund can be sanctioned - Appeal dismissed.
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