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M/s J.K. Drugs & Pharmaceuticals Ltd. Versus Commissioner of Central Excise & Customs, Meerut-II

2016 (8) TMI 289 - CESTAT ALLAHABAD

Refund of modvat credit - admissibility - period of limitation - accumulation of credit due to export of goods - Held that:- u/s 11B, the relevant date for such type of refund, is not specified. - in the absence of any relevant date, limitation period could not have been calculated by the original authority. Therefore, the quantum of modvat credit rejected to be refundable on the ground of limitation, is not sustainable in law. - Refund of modvat credit - admissibility - non-availability of .....

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hat:- by following the precedents decision of this Tribunal in the case of Hotline Teletube & Components Ltd. Vs. Commr. of Central Excise, Indore [1998 (5) TMI 72 - CEGAT, NEW DELHI], more than one refund claim can be filed in a quarter. - Matter remanded back - Ex. Appeal Nos.345-348/06 & 1973/08 - Final Order No. 70355-70359/2016 - Dated:- 30-6-2016 - Mr. Anil Choudhary, Member (Judicial) and Mr. Anil G. Shakkarwar, Member (Technical) Shri Atul Gupta & Hrishikesh, both Advocates for the A .....

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I/2008 dated 30.05.2008 passed by Commr. of Central Excise & Customs, Meerut II. 2.1 Brief facts of the case are that the appellants, M/s J. K. Drugs & Pharmaceuticals Ltd., are manufacturers of bulk drugs falling under Chapter 28 & 29 of schedule to Central Excise Tariff Act, 1985. During the period from November, 1995 to July, 1996, the appellants availed modvat credit on inputs used in the manufacture of their final product. The final products were exported under bond and as provi .....

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1 st March, 1997, would lapse. In view of the same, it was contended that since, the entire credit was lapsed, no credit was left with the appellants to be refunded against the four applications filed under Rule 57F (13) by the appellants. So, it was proposed in the said SCN that their claims would be rejected. The appellants submitted their reply to the SCN stating that the same provision related to lapse of un-utilized modvat credit as on 1 st March, 1997, is not applicable to them, since the .....

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02 dated 29.04.2002, it has been held that refund could not be sanctioned due to deficiency in the applications before the credit lapsed on 01.03.1997 and upheld the said Order-in-Original. 2.4 The appellants preferred the appeals before this Tribunal. This Tribunal through its Final Order No.A/248/03 dated 14.05.2003, held that since the refund applications were filed before 01.03.1997, refund was admissible to appellant. This Tribunal set aside the order-in-appeal dated 29.04.2002 and allowed .....

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ts filed the Misc. Application before this Tribunal with a prayer to implement the Tribunal's Order dated 14.05.2003. This Tribunal decided the said Misc. Application through its order dated 08.09.2004, wherein directions were issued to Revenue to sanction the refund as ordered through Final Order dated 14.05.2003 and also to pay interest at the applicable rate from the expiry of three months after the date of filing of applications for refund till the date of payment. 2.6 In the mean time, .....

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Appeal No. 1541 of 2005 and gave its ruling on the said Order as reported in 2005 (182) ELT 310 (SC) (in the case of Commr. of Central Excise Vs. J. K. Drugs & Pharmaceuticals Ltd). For better appreciation, the said order is reproduced below : "Delay condoned. 2. Issue notice. 3. Learned Counsel for the respondent appears and takes notice. 4. With the consent of the learned Counsel for the parties, the matter is heard finally. 5. Leave granted. 6. Vide judgment dated 14-5-2003 the Tribu .....

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ntitled for the same. Accordingly, we set aside the impugned order and allow the appeals with consequential relief." 7. The Revenue filed a special leave petition against the said order which was dismissed by this Court on 6-2-2004. 8. It appears that a grievance was raised before the Tribunal that refund in compliance with the order of the Tribunal which has achieved finality is not being granted. By the impugned order, the Tribunal has directed the Revenue to grant refund of the amount wi .....

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nt as to refund have been taken care of. Four such orders are dated 3-9-2004 (Annexure-P8 (Colly)). It is further pointed out that the orders dated 3-9-2004 have been put in issue by the respondent by filing appeals before the Commissioner (Appeals) and therein the correctness of the orders passed by the Assistant Commissioner is being examined. The learned Solicitor General submits that either the Tribunal should have awaited for the decision by the Commissioner (Appeals) or else should have it .....

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, as advised, either await the orders of the Commissioner (Appeals) in the matter of quantification of refund or else may itself go into the question and quantify the amount of refund. In the event of the Tribunal arriving at a finding that some amount is due and payable to the respondent by way of refund and the Revenue has unreasonably withheld the refund then the amount may be directed to be refunded with interest, may be compound interest, depending on the opinion formed by the Tribunal. The .....

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said Misc. Application on the ground that the adjudicating authority had already passed an appealable order which was under appeal with the Id. Commissioner (Appeals). The said appeals before the Id. Commissioner (Appeals) were decided through Order-in-Appeal Nos.305-308-CE/MRT-II/2005 dated 16.12.2005, wherein the Id. Commissioner (Appeals) held that the Order Nos.41/2004 to 44/2004 dated 03.09.2004, were passed in violation of principle of natural justice. He remanded the matter in all the fou .....

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or quantification, the original authority has taken into consideration four aspects, which are as under : (i) limitation; (ii) non-availability of certain documents to establish exports; (iii) Two refund claims were filed on the same date ; (iv) Change in formula for quantification of the quantum of modvat credit admissible for refund taking into consideration the total turnover and turnover related to export. After deliberation, the ld. Dy.Commissioner granted refund of certain amount rejected .....

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erest of ₹ 27,78,100/- was granted. In the third round of litigation, the Order-in-Original dated 18.12.2007, the total sanction refund amount comes to ₹ 69,91,409/-, which includes refund sanctioned during second round of litigation. Against the said order dated 18.12.2007, the appellants filed the appeal before the Id. Commissioner (Appeals) who through his Order-in-Appeal No.88/CE/MRT II/2008 dated 30.05.2008, decided the said appeals and upheld the order-in-original dated 18.12.2 .....

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stating that the documents, such as, shipping bills etc. were not available, whereas the fact is that the goods were exported , bank realization was submitted and the proof of export were issued by the competent authority and the bond through which export under bond, was allowed and released after acceptance of proof of export. It was further contended that one of the refund claim was rejected stating that more than one refund claim was filed in the same quarter. Further, there are many rulings .....

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cise, Indone reported at 1998 (102) ELT 33 (Tribunal). 5. The Id.A.R. for the Revenue has reiterated both the impugned orders-in-appeal. 6. We have taken into consideration the rival contentions. We have also gone through the directions of the Hon'ble Supreme Court in this case. In the first round of litigation, the quantification to arrive at admissible, quantum of modat credit, to be refunded, was not examined. As stated above, subsequently, the criteria for rejecting the claim taken by th .....

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