TMI Blog2014 (6) TMI 936X X X X Extracts X X X X X X X X Extracts X X X X ..... lvent surety to the satisfaction of the jurisdictional Commissioner, subject to the final outcome of decision in LPA filed by the department before the Hon’ble High Court of J&K or any final decision of the Hon’ble Apex Court of India, etc. - Order-in-Appeal No. JNK-EXCUS-000/APP-368/2014/15 - - - Dated:- 12-6-2014 - Shri Anil Kumar Gupta, Commissioner (Appeals) Dr. A.S. Gill, Advocate, for the Assessee. ORDER The Deputy Commissioner of Customs Central Excise Division, Srinagar, J K (hereinafter referred to as the Revenue ) have filed this appeal under Section 35 of the Central Excise Act, 1944 (hereinafter referred to as the Act ), against the Order-in-Original No. 125/CE/Rfd/AC/2012-13, dated 21-8-2013, (hereinafter referred to as the impugned order ), issued by the Deputy Commissioner, Customs Central Excise Division, Srinagar, J K (hereinafter referred to as the adjudicating authority ), as per details given below :- TABLE Sr. No. Appeal No. Order-in-Original No. (adjudication order) Period involved Amount of refund not admissible as per appeal filed by the Rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f refund so claimed by the Respondents for the year 2010-11, by restricting the refund to the value addition norms for the period from April, 2010 to Feb. 2011 and allowing full refund of duty paid through PLA, for the month of March, 2011 on the ground that appellants have filed writ petition before the Hon ble High Court of J K challenging the amending notifications and the Hon ble High Court of J K, has kept the amending notifications in abeyance vide its order dated 24-3-2011, entitling the Respondents to claim refund of 100% of duty paid through PLA, during March, 2011. In addition, while computing the said year-end differential refund amount, the adjudicating authority has not deducted the amount of ₹ 1,19,036/-, pertaining to the wrong availment of refund, by way of self credit, for an amount paid as duty on the HV/LV coils used in the non-excisable activity of repair of old transformers, on the ground that show cause notices for recovery of the same have already been issued. 3. Being aggrieved, the Revenue has filed this appeal, on the following grounds :- (i) That during the year 2010-11, the Respondents have availed refund by way of self credit, for ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so reiterated the same. In their cross objections, the Respondents, inter alia, submitted, as under :- (i) That in nutshell the amount ₹ 3,71,982/- appealed by the Revenue consists of the following amounts:- (a) Refund taken on HV/LV coils = ₹ 1,19,036/- (b) 100% Refund taken for the month of March, 2011 = ₹ 2,52,946/- Total ₹ 3,71,982/- (ii) That they have suo motu paid back the refund amount of ₹ 1,19,036/- on HV/LV coils used in repair of old transformers vide their Cenvat credit Entry No. 70 71 both dated 25-1-2014, in view of final order of the Hon ble CESTAT in the case of Continental Transformers (referred to in Para 3(i), supra. (iii) That the Respondents have taken 100% self credit during the month of March, 2011, in view of the stay granted by the Hon ble High Court of J K on 24-3-2011. The modification to the stay on operation of the amending notifications was granted to the Revenue on 8-5-2013. As such, they were allowed to take 100% refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the repair of old transformers, the Respondents cannot take the benefit of the notification on the ground that they have paid an amount as duty on the said HV/LV coils. On my these observations, I am placing reliance upon the Hon ble CESTAT s decision in the case of Commissioner of C.Ex., J K, Jammu v. Continental Transformers [2012 (285) E.L.T. 435 (Tri.-Del.)], relevant para of which is reproduced as under :- 7. Now the question arises since the respondent has admittedly cleared HV/LV coils on payment of excise duty, would he be entitled to benefit of exemption Notification No. 56/2002-C.E. Our answer to this question is in the negative. Notification No. 56/2002-C.E. provides for refund of the payment of excise duty and additional excise duty paid by the assessee from his PLA account while clearing the excisable goods. In the instant case we have already concluded that HV/LV coils fabricated by the respondents are not subject to levy of excise duty. That being the case when excise duty was not leviable on the goods. The respondent cannot take the benefit of Notification No. 56/2002-C.E. on the plea that he has cleared non-excisable goods on payment of excise duty. Otherwise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in terms of the Hon ble High Court s interim order dated 8-5-2013, the Respondents have not yet furnished the said solvent surety to the jurisdictional Commissioner. In these circumstances, I observe that the Respondents are entitled to 50% of the amount due to them as per directions of the Hon ble High Court issued vide interim order dated 8-5-2013, on furnishing of solvent surety to the satisfaction of the jurisdictional Commissioner, subject to the final outcome of decision in LPA filed by the department before the Hon ble High Court of J K or any final decision of the Hon ble Apex Court of India, etc. On compliance of conditions contained in the Interim Order dated 8-5-2013, of the Hon ble High Court of J K, the Respondents can approach their jurisdictional refund sanctioning authority for release/refund of 50% of the amount due to them. Therefore, I order modification of the impugned order, accordingly. 9. In view of the above, I pass the following order :- (i) The appeal of the Revenue on the issue of recovery of erroneous availment of refund for an amount paid as duty on HV/LV coils used in the repair of old transformers, is upheld and the findings of the adju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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