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2015 (10) TMI 572 - CESTAT CHENNAI

2015 (10) TMI 572 - CESTAT CHENNAI - TMI - Recovery of erroneous refund of unutilized cenvat credit - period of limitation - Export of service - whether notices issued by adjudicating authority for demanding erroneous refund is hit by limitation specified under notification No. 35/2000 or whether general limitation for extended period is covered under section 11A of Central Excise Act,1944 - Held that:- it is clear that the demand of erroneous refund made under this notification shall be within .....

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CCE Vs. Raghuvar (India) Ltd. (2000 (5) TMI 40 - SUPREME COURT OF INDIA) wherein it categorically held that when there is a limitation provided under the notification, the period mentioned under section 11A is not applicable.

Ratio of this Tribunal order and the Hon’ble Apex Courts judgment are clearly applicable to the facts of the present case and there is no dispute on the fact that the refund was sanctioned under Rule 5 of CENVAT Credit Rules, 2002 in terms of Notification No. 35 .....

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hri R. Periasami, Technical Member and Shri P. K. Choudhary, Judicial Member, JJ. For the Petitioner : Shri S. Muthuvenkataraman, Advocate For the Respondent : Shri B. Balamurugan, AC (AR) ORDER Per R. Periasami Appellant preferred appeal against Order-in-Appeal dated 28.11.2003 passed by Commissioner (Appeals). 2. The brief facts of the case are that the adjudicating authority had sanctioned refund of ₹ 74,99,199/- by way three Orders-in-Original dated 23.11.2001, 8.2.2002 and 6.5.2002 un .....

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ommon Order-in-Original No. 109 to 111/2003 dated 10.9.2003. Commissioner (Appeals) upheld the adjudication order. Hence, appellants have come in appeal before this Tribunal. 3. Learned counsel submits that the Department has sanctioned refund under Rule 57AC(7) of Central Excise Rules, 1944 and Rule 5 of CENVAT Credit Rules, 2002 being unutilized amount of credit accumulate towards their export. He submits that the refund orders were not reviewed by the Department nor any appeal filed against t .....

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CCE, Hyderabad Vs Sunder Steels Ltd. 2005 (181) ELT 154 (SC) (b) Rourkela Steel Plant Vs. CCE, Bhubaneswar - 2008 (227) ELT 522 (Tri. LB) (c) CCE, Jaipur Vs. Raghuvar (India) Ltd. 2000 (118) ELT 311 (SC) (d) Shasun Chemicals & Drugs Ltd. Vs. Collector of Customs, Madras 1998 (98) ELT 79 He submits that in the case of Shasun Chemicals (supra) this Tribunal has held that the limitation prescribed under Notification No. 85/87 dated 1.3.1987 is only applicable and the extended period of limitat .....

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nnot be invoked in any refund. Therefore, section 11A provision overrides the notification. 5. After hearing both sides and careful consideration of the records, we find that the limited issue in this case is whether notices issued by adjudicating authority for demanding erroneous refund is hit by limitation specified under notification No. 35/2000 or whether general limitation for extended period is covered under section 11A of Central Excise Act,1944. 6. On perusal of the records, we find that .....

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ion is reproduced below:- 3. The manufacturer undertakes to refund to the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, on demand being made, within six months of the date of payment, any refund erroneously paid to him. As seen from the above, it is clear that the demand of erroneous refund made under this notification shall be within six months from the date of refund. We also find that the adjudicating authority has sanctioned the re .....

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ovided under the notification, the period mentioned under section 11A is not applicable. Para 13 of the Hon ble Supreme Courts order reads as under:- 13. Any law or stipulation prescribing a period of limitation to do or not to do a thing after the expiry of period so stipulated has the consequence of creation and destruction of rights and, therefore, must be specifically enacted and prescribed therefor. It is not for the Courts to import any specific period of limitation by implication, where t .....

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The section also provides for an extended period on certain contingencies and situations. The situation on hand and the one which has to be dealt with under Rule 57-I, as it stood unamended, does not fall under any one of those contingencies provided for in Section 11A of the Act. Part AA of the Rules in which Rule 57-I is found included provides a special scheme for earning credit and adjustment of duty paid on excisable goods used as inputs in the manufacture of what is referred to as final pr .....

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manufacturer that the adjustment he purported to have made was with an amount not legitimately or factually earned by or due to him. For this purpose, the irregularity and impropriety committed by the manufacturer in maintaining the accounts and the error in the calculation of the credit said to have been earned by him is pointed out, and the manufacturer is only directed to reverse the credit so wrongly and undeservedly made by readjustment and if need be, to recover the amount equivalent to s .....

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