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2017 (1) TMI 711 - CESTAT KOLKATA

2017 (1) TMI 711 - CESTAT KOLKATA - TMI - Refund claim - Rule 6 (3)(a)(viii)(4) of the Cenvat Credit Rules, 2004 - Section 11B of the Central Excise Rules, 1944 - time bar - Held that: - it is not the case that the provisions of the Central Excise Rules are unconstitutional. In other words, it is a case of the tax collected by the authorities under the Rules by misconstruction or wrong interpretation of the provisions of the Act and Rules and therefore, the claim of refund of amount arises under .....

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y, Supdt. (A.R.) for the Revenue ORDER Per Shri P. K. Choudhary The brief facts of the case are that the appellant availed the cenvat credit on the inputs for manufacture of dutiable as well as exempted finished goods. They paid an amount equal to 10% of the value of the exempted goods at the time of clearance from their factory. Subsequently, they filed a refund claim on 25.09.2006 of ₹ 17,73,743.68 for the period from 08.04.05 to 14.05.06 on the ground that they have paid excess amount i .....

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e principles of natural justice. In de novo adjudication, the adjudicating authority sanctioned the refund claim of ₹ 8,53,305/- and directed that the amount should be paid to the appellant through adjustment in the cenvat credit account. The balance amount of refund claim was rejected as barred by limitation. The appellant filed an appeal before the Commr. (Appeals). By the impugned order, the Commr. (Appeals) upheld the adjudication order and dismissed the appeal. 2. Heard both sides and .....

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of Mafatlal Industries Ltd. Vs. Union of India : 1997 (89) ELT 247 (SC), held that all claims for refund except where levy is held to be unconstitutional are to be preferred and adjudicated upon under Section 11B of Central Excise Act, 1994 or under Section 27 of the Customs Act, 1962. Hence, the refund claim would be treated as filed under Section 11B of the said Act. 4. The ld.Counsel on behalf the appellant submitted that since it is not duty and the amount was paid by mistake, it would not .....

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ational Vs. Union of India : 2016 (339) ELT 21 (Guj.). 5. The ld.A.R. on behalf of the Revenue reiterated the findings of the Commr. (Appeals). He also drew the attention of the Bench to the relevant portion of the decision of the Hon ble Supreme Court in the case of Mafatlal Industries Ltd. (supra). For proper appreciation of the case, the relevant portions of the above decision are reproduced below : 16. Article 265 of the Constitution is declaratory in nature. It says that no tax shall be lev .....

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law , it no doubt refers to a valid law but the validity of a law has to be determined with reference to other provisions in the Constitution. 17. We must, however, pause here and explain the various situations in which claims for refund may arise. They may arise in more than one situation. One is where a provision of the Act under which tax is levied is struck down as unconstitutional for transgressing the constitutional limitations. This class of cases, we may call, for the sake of convenience .....

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