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2016 (4) TMI 324 - CESTAT NEW DELHI

2016 (4) TMI 324 - CESTAT NEW DELHI - TMI - Refund claim - Manufacture of black and white T.V. Picture Tubes of various sizes - Availed credit of duty paid on various inputs used in the manufacture of these picture tubes - Submission of statements showing daily balance of RG 23 A part II for the period 01.08.1995 to 01.03.1997 where the amount of modvat credit available was never below ₹ 227.20 Lacs - Held that:- the appellant has made out a case for refund of the amount paid by them in ca .....

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he law only from 26.05.1995 vide Section 11BB of the Central Excise Act, 1944. Therefore, interest entitlement will be due from three months after the introduction of the provisions for payment of interest in the Act. - Decided in favour of appellant with consequential relief - Excise Appeal No. E/164/2005-EX [DB] - Final Order No. 51051/2016 - Dated:- 22-3-2016 - MR. S.K. MOHANTY, MEMBER (JUDICIAL) AND MR. B.RAVICHANDRAN, MEMBER (TECHNICAL) For the Appellant : Shri.Bimal Jain, Advocate For the .....

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lling under tariff Heading 8540.12 of the Schedule to the Central Excise Tariff. They were availing credit of duty paid on various inputs used in the manufacture of these picture tubes. There were about 31 such inputs the credit on which were availed by the appellant under the then Rule 57 A of the Central Excise Rules, 1944. Out of these 31 inputs, except 2 inputs others are common for all types of picture tubes. Two inputs, namely, electron gun and gas shell are specific to the size of the pic .....

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Accordingly, proceedings were initiated to recover such wrong utilization of credits during the period 01.03.1994 to 15.03.1995. Four show cause notices were issued for a total amount of ₹ 4,19,33,605. When the matter was pending adjudication the appellants on their own calculated the amount covered towards the allegation made by the Revenue and paid an amount of ₹ 2,27,20,000/- through their PLA, in two installments of ₹ 1.00 Crore on 03.08.1995 and ₹ 1,27,20,000/- on 07 .....

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Central Excise Rules, 1944. He imposed penalty of ₹ 5.00 Lakhs. Regarding suo moto credit of ₹ 2,27,20,000/-, the Original Authority held that since this is part of the total demand confirmed there is no need to disallow the said credit separately. 3. The appellant filed appeal against the above order and the Commissioner (Appeals), Jaipur vide his order dated 31.01.1997 rejected the appeal. A further appeal was preferred before the Tribunal. The Tribunal vide final order dated 12.0 .....

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nch picture tubes for discharging the duty on 17 inch and 20 inch picture tubes. The Tribunal further held regarding prayer for refund, that the matter requires recalculation by the adjudicating authority. The Tribunal remanded the matter to the adjudicating authority only for the purpose of recalculation of the amount of credit lapsed, the period concerned and the quantum of refund, if any, due to the appellant in the light of relevant rules. 5. Here it is necessary to record another change in .....

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ld. Commissioner (Appeals) upheld the Original Order and rejected the appeal. Aggrieved by this order the appellant filed the present appeal. 8. Meanwhile the Revenue filed a reference petition No.6/2002 before the Hon ble High Court of Rajasthan challenging the Tribunals order dated 19.04.2002. The Hon ble High Court vide order dated 17.02.2003 directed the Tribunal to submit the statement of facts in regard to two questions framed for decision by the High Court. The present appeal was listed .....

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sponsible officer giving details about the credit which was availed by the appellants during the period from 01.08.1995 to December, 1995 in terms of entries in RG-23 A part II Register 2 and the total balance which was available on 31.12.1995. 9. On 20.04.2011 again the matter was heard extensively. The ld. D.R. mentioned regarding pendency of reference petition. The Registry was directed to ascertain the present status of reference. Again on 13.03.2013 the Tribunal directed to report the statu .....

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re the Honble High Court. On 23.01.2015 the Registry was again directed to ascertain the status of the reference petition and also as to the said reference has been sent to High Court or not. The Registry was also directed to give copy of Revenues reference application alongwith orders of the High Court dated 17.02.2003 to the Counsel for the appellant. On 12.03.2015 the Tribunal recorded the submission made by Joint C.D.R. on behalf of Revenue that the Hon ble High Court has not passed any or .....

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ble Rajasthan High Court. 10. On 28.10.2015 when the case was listed the Tribunal passed an interim order giving the developments in the case so far. It was submitted in the Court that the said reference petition was registered as E.G.C.R. No.9/2004 and the same was listed before the High Court on 02.12.2008. The Honble High Court vide order dated 02.12.2008 granted three weeks time to the Department as a last opportunity to file paper-book and stated that in default to file the same, the refe .....

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.2013 written by Additional Commissioner to state that they are making efforts to file an application for restoration of their reference petition dismissed for non-prosecution. It was further informed on 28.10.2015 that the application for the restoration of reference petition has been filed and pending decisions in the Honble High Court. After going through the appeal records and the fact of submission of incorrect information by the Revenue repeatedly, the Tribunal observed that it is not pro .....

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unal noted that when the case was heard on 12.01.2016 the Revenue sought time to verify the cenvat account of the appellant. It was also informed that a team of officers are attending to the work and it was noted by the Tribunal on 05.02.2016 that in the past 25 days no progress has been reported. Revenue was given a final chance to file a report on verification of the cenvat account as directed earlier. On 22.02.2016 the ld. A.R. submitted a copy of letter dated 08.02.2016 issued by the Commiss .....

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al and ultimately the verification report called for from the Jurisdictional Commissioner could not be filed to assist the Tribunal. 14. We have heard both sides extensively and perused the appeal records. 15. On merit of the case regarding availability of credit of inputs and eligibility of such credit for discharging duty liability on all the final products, the matter has been settled in favour of the appellant. The Tribunal vide the final order dated 19.04.2002 directed the original authorit .....

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efund in view of a favourable order on merit by the Tribunal. Such refund has been denied by the original as well as first appellate authority on the ground that the amount of ₹ 227.20 Lakhs taken as a re-credit in August, 1995 has been utilized by them for payment of duty and there was no amount available as on 31.12.1995 on this account. In other words, it was concluded by the lower authorities that credit of amount of ₹ 492.28 Lakhs which lapsed on 01.03.1997 in terms of newly int .....

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- Register No.1 Register No.2 Total Opening balance as on August 1, 1995 157.69 Lacs Opening Balance as on August 1, 1995 624.63 Lacs 782.32 Lacs Credit taken during August 1995 to December, 1995 235.42 Lacs Credit taken during April 1995 to February, 1997 3578.03 Lacs 3813.45 Lacs Sub-total 4595.77 Lacs Credit utilized during August 1995 to December, 1995 393.11 Lacs Credit utilized during April 1995 to February, 1997 3710.38 Lacs 4103.49 Lacs Closing Balance as on December 31, 1995 Nil Closing .....

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ions of the appellant. 18. The ld. A.R. on the other hand stated that in Register 1 the balance was nil as on 31.12.1995. It is in this register the re-credit of the impugned amount was entered. As such, he claimed that it cannot be said that the credit amount lapsed as on 01.03.1997, which is as per register 2 can be said to have included the said amount. 19. In this connection, it is to be noted that the existence of bonafideness of the two registers has never been disputed by the Department .....

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irmation on account of wrong utilistion of credit and since this credit of ₹ 227,20,000/- forms a part of that parent demand, there is no question of disallowing this credit again 20. The above observation was reported in the Appellate Order dated 08.11.2000 also. Hence we find that the present comment given by the Jurisdictional Commissioner regarding nil credit balance as on 31.12.1995 is factually incorrect and is contradictory to the earlier findings recorded by the adjudicating author .....

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ion and relocation of office etc. 21. As already noted the claim for refund in the present case arose consequent on a favourable finding by the Tribunal vide the final order dated 19.04.2002. The findings in the impugned order only focused on the credit balance in register-1 of RG 23 A part II without any reference to register No.2 which contained a balance of ₹ 492.28 Lakhs. The finding is that this amount which is to lapse on 01.03.1997 does not include the amount now claimed as refund. .....

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