TMI Blog2016 (12) TMI 1448X X X X Extracts X X X X X X X X Extracts X X X X ..... efund claim if looked into above angle also - Appeal dismissed - decided in favor of the assessee. - Appeal No. E/130/06-Mum - A/94186/16/EB - Dated:- 2-12-2016 - Mr. Ramesh Nair, Member (Judicial) And Mr. C.J. Mathew, Member (Technical) Shri V.K. Agarwal, Addl. Commr. (A.R.) for Appellant Ms. Anjali Hirawat, Advocate for Respondent ORDER Per Ramesh Nair The fact of the case is that the respondent is engaged in the manufacture of imitation jewellery for which they are using Gold Potassium Cyanide (GPC) which are manufactured in their factory as an intermediate product. Prior to 31.03.2001 the imitation jewellery was not attracting duty and therefore the respondent liable for payment of duty on their intermediate pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the case. Therefore, there is no substance in the appeal of the Revenue, which needs to be dismissed. She placed reliance on the following judgments:- (i) CCE Vs. Sunshine Jewellers Ltd. 2014 (308) ELT 129 (T) (ii) CC (A) Vs. PSI Data Systems 2009 (239) ELT 304 (T) 4. We have carefully considered the submissions made by both the sides. We reproduced the Learned Commissioner (Appeals) findings given in the impugned order: 05. I have carefully gone through the grounds of' appeal; written and oral submissions made by respondent and also the provisions of law relating to subject matter. The issue involved is whether the refund allowed is proper and in order or otherwise? The fact which is not on dispute that Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar (1999) I SCC 273. In the absence of any valid demand for the period 03/2001 no adjustment is possible specially when the demand on the disputed goods from 04/99 to 03/2001, stands dropped vide above order-in-original or set aside vide aforesaid Order-In-Appeal, which are still valid. Moreover, in the Order-In-Appeal dated 27.01.04 the Commissioner (Appeals) has decided the classification issue (in para-26) and the matter was send to DC/AC to determine the revised demand, if any, based on record to be produced by respondent before him. Thus, the issue of classification of final product is not under dispute and remand order relates to qualification of demand amount only. In the case of CCE Vs. M/s. Flack, (India) = 120, ELT 285 (SC), it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty w.e.f. 01.03.2003 -in terms of' Notfn. No. 03/2001 dated 01.03.2001. Consequentially, the GPC i.e. intermediate product will get the benefit of Notfn. No. 67/95 - CE (NT) dated 01.03.95 and will be fully exempted. The fact which is not on dispute that refunded amount was, paid during investigations. The payment was made on 28.07.01 and' 03.08.01 Vide TR-6 Challan for-the-post clearances. In other words, the respondent had; paid: the refunded amount even before issue of show' cause notice' and amount was deposited and not paid as duty against any outstanding demand/C.Ex. duty. Section 11 B of CEA'44 is applicable with respect to C.Ex. duty only. The amount paid by the respondents is in the nature of deposit and hence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue argument that subject notification is not claimed by respondent and lower authority on own has allowed, is also not tanable. In the case M/s. Bharat Earth Movers Ltd. VS. CCE - [1991 (52) ELT 600 (CEGAT)] also in CCE Vs. M/s. ITC Ltd. - [1993 (67) ELT 852 (CEGAT)] it was held by Hon'ble Tribunal that it is not essential that exemption has to be claimed before clearance of goods. It is possible to avail exemption by making a refund claim later, even if classification or assessment is done at higher rate. In the case of M/s. Tas Engineering Vs. CCE [2001 (131) ELT 275 (CEGAT SMB)], it was held that if exemption was not claimed at the time of clearance, it can be claimed later by way of refund claim. Otherwise, Section 11B of Act wou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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