TMI Blog2013 (1) TMI 585X X X X Extracts X X X X X X X X Extracts X X X X ..... rsal was found to be wrong, the provisions of Section 17 of Limitation Act would be applicable and limitation period would run from the date on which the mistake was discovered by the appellant. Ascertainment as to whether the reversal was on the insistence or instructions of the Departmental Officers - Held that:- On this point there is dispute, as while the Department claims that the reversal in both the cases had been made by the appellant on their own without any instructions in this regard to them, Contrary to this, the appellant in their reply dtd. 02.09.01 to the Show Cause Notice have made the submissions that reversal of credit was done without any protest but on the context of wrong interpretation of rule by departmental officers advising reversal of such credit. The learned DR had been asked file his written submissions on this point but the same have not been filed in view of this, the matter has to be remanded once again to the Commissioner (Appeals) and ascertain as to whether the reversal was on advice or instructions of the Departmental Officers or made by the appellant on their own, as per their own interpretation of rules without any advice or any instruction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dtd. 13.03.06, remanded the matter to the original authority to consider the refund claim on the basis of Tribunal s decision in the case of Patel Field Marshal Industries Vs. Commissioner of Central Excise Rajkot, reported in 2003 (158) E.L.T. 483. 1.3 In denovo proceedings the original adjudicating authority vide order dtd. 25.08.06, rejected the refund claims for the amount of Rs. 4,98,052/- as time barred. The order of the original adjudicating authority was upheld by Commissioner of Central Excise (Appeals) vide order-in-appeal dtd. 14.12.06. The Commissioner (Appeals) held that the judgment of the Tribunal in the case of Patel Field Marshal Industries (Supra) and Rule 57CC was not applicable, but the refund claim would be subject to the limitation period prescribed under Section 11B. 1.4 The appellant filed appeal before the Tribunal against the Commissioner (Appeal) s order dtd. 14.12.06 which was decided by the Tribunal vide final order No. 901/09 SM [BR] dtd. 24.07.09 by which the tribunal once again remanded the matter to Commissioner (Appeals) for deciding the question of limitation in the light of the judgment of Hon ble Allahabad High Court in the case of Coll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .T.19 (Guj.), where in it has been held in clear terms that the refund of Cenvat/Modvat Credit is subject to the Provisions of section 11B, pleaded that the limitation period prescribed in 11B would be applicable, that since in this case the appellant had reversed the credit, in question, without any protest, on their own and without any instructions or advice from the department, the saving clause of 2nd proviso to section 11B(1) would not be applicable, that the judgment of the Hon ble Allahabad High Court in the case of Ram Swarup Electricals Ltd. (Supra), is on the question as to whether there is time limit for availing Cenvat Credit which, at the time of receipt of goods, was not availed or short availed and in that case Hon ble High Court has not been dealt with the question of applicability of Section 11B for refund of the Cenvat Credit which had earlier been wrongly reversed and that in view of the above submissions, there is no infirmity in the impugned order. 4. Ms. Rajeshwari K.G., the learned counsel for the appellant, in rejoinder pointed out to Para 33 on Hon ble Gujrat High Court judgment in the case of Indo-Nippon Chemicals Co. Ltd. (Supra), and pleaded that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the respondent were entitled to take the differential higher notional credit under Rule 57B at a subsequent stage. In other words whether the full amount of admissible Modvat credit has to be taken in a single transaction or it could be taken in installments as done by the respondents in the present cases and allowed by the Tribunal? 2. Whether, even if, it is held that such subsequent taking of short availed credit is permissible, the Tribunal was correct in allowing such subsequent taking of credit beyond a period of six months from the date of the original taking of credit or the Tribunal should have restricted the credit so taken subsequently to the amounts relating to the immediately preceding six months period? 3. Whether subsequent taking of originally short availed Modvat credit will constitute a refund claim and accordingly subject to the time limit restriction laid down under Section 11B of the Act.? 4. Whether by filing the Gate Passes and RT-12 monthly returns the respondents can be said to have staked a claim at the original stage and hence the time limit of six months will not be applicable as held by the Tribunal? 6.1 From the perusal of the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule by departmental officers advising reversal of such credit. Addressing the letter intimating reversal of credit earned on polyester tow contained in Wool Waste (R.C.Noil) to Superintendent (Prev.) and delivered during their presence at our unit on 29.12.98 proves that they have forcibly and illegally, levied and collected duty of excise without any authority of law. Therefore, the authority cannot retain illegally collected tax and refund should be allowed without imposing any condition as per Aapex Court s Judgment. 7.1 The learned DR had been asked file his written submissions on this point but the same have not been filed. In view of this notwithstanding the fact that this is the 3rd round of litigation, the matter has to be remanded once again to the Commissioner (Appeals). The Commissioner (Appeals) in remand proceeding should go through the entire records and ascertain as to whether the reversal was on advice or instructions of the Departmental Officers or whether the reversal of Modvat/Cenvat Credit had been made by the appellant on their own, as per their own interpretation of rules without any advice or any instructions, in this regard from the department. If the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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