TMI Blog2017 (3) TMI 1453X X X X Extracts X X X X X X X X Extracts X X X X ..... differential duty was filed in 2005 under Rule 57E but the said Rule was not in existence at that point of time. Hence, the relief sought by appellants under Rule 57E is not available to the appellants even by virtue of provision of Section 38A ibid. Appeal dismissed - decided against appellant. - E/2275/2007 - A/60363/2017-EX[BR] - Dated:- 9-3-2017 - Dr. Satish Chandra, President And Mr. Devender Singh, Member (Technical) Shri B.L. Narasimhan, Advocate for the appellant Shri G.M.Sharma, A.R. for the respondent ORDER Per Devender Singh The appellant M/s Escorts Ltd. AMG (Tractor Plant) is in appeal against Order-in-Appeal No.53/CE/Appl/DLH-IV/2007 dated 21.05.2007 passed by the CCE (Appeals), Delhi-I. 2. The brief facts of the case are that M/s Escorts Ltd. - AMG (Tractor Plant) are engaged in the manufacture of Tractors falling under heading 87.08 of Central Excise Tariff. The appellants filed a refund claim of duty of ₹ 3,84,01,009/- with the jurisdictional Assistant Commissioner of Central Excise on 16.02.2005 in terms of Rule 57E of Central Excise Rules, 1944. The sequence of events leading up to the filing of refund claim by the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... back to the Commissioner (Appeals) for deciding the matter afresh after affording an opportunity of hearing. In the meantime, M/s Escorts (TED) approached the Settlement Commission on 4.11.2003 and in terms of Admission Order No. A-256/CE/04-SC(PB) dated 14.09.2004 passed by the Settlement Commission, paid the balance duty amount of ₹ 2,84,01,009/- in three equal instalments of ₹ 94,67,003/- each on 29.10.2004, 25.11.2004 and 28.12.2004. This is how M/s Escorts Ltd (TD) (now AMG (Tractor Plant-Appellants) have now come up with the above refund claim of the duty amount which was paid by M/s Escorts Ltd(TED) in terms of the order of the Settlement Commission. 3. The appellant M/s Escorts Ltd. AMG (Tractor Plant) claimed that the duty payment by M/s Escorts Ltd. (TED) was available as credit to them and as the same could not be utilized since the tractors were subsequently not dutiable, they were entitled to claim the Modvat credit of differential excise duty so paid by M/s Escorts Ltd. (TED) in cash under Rule 57E of Central Excise Rules, 1944 as the said Rule was in existence during the period from April, 1995 to November, 1995. The Adjudicating Authority rejected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ening the proceedings of Settlement Commission and would render the decision of Settlement Commission as ineffective. He also emphasized that Rule 57E was deleted in 2000 and no refund could be granted under a deleted rule. 6. Heard both the sides and perused the records. 7.1 The first question to be decided is whether the refund claim filed by the appellants would amount to re-opening of the order of the Settlement Commission. The appellants have argued that the present refund claim has been filed by a different unit of the appellant, which is recipient of goods and is therefore entitled to take cenvat credit of duty paid by Escorts (TED). 7.2 After examining the facts narrated in para 2 above, we agree with the findings of Commissioner (Appeals) that the appellants have filed the refund claim in respect of same duty amount which was deposited by M/s Escorts (TED) as per the order of the Settlement Commission. The terms and conditions of the Final Order No.F-241/CE/05-SC(PB) dated 3.3.2005 are as below: ......... In view of the facts and circumstances of the case, the present application is finally settled on the following terms and conditions under Section 32F(7) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 16.02.2005. Both the events happened when Rule 57E had already been extinguished from the statute. If the Rule 57E did not exist at the time when the differential duty was paid as also when the refund claim was filed, no question of refund under a non-existent rule would arise. The appellants relied upon the case law of Smithklime Beechem Consumer Healthcare Ltd. (supra) in support of their claim. The facts of the cited case are completely different from the present case. In the said case, the assessment had been done on the provisional basis which were subsequently finalized, duty was paid by Rajamundry factory of appellants and the Superintendent of Central Excise had issued a certificate under Section 57E of Central Excise Rules, 1944. The credit was passed on to the packing station at Bangalore. As the packing station at Bangalore was closed down, as a result of which the question of cash refund of amount of credit on the strength of 57E certificate issued by the Superintendent arose. In the present case, there is no finalization of provisional assessment but payment of duty pursuant to an order of Settlement Commission. Besides, no certificate under 57E has been issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o TPL for period from 01.03.1994 to 31.07.1998. A show cause notice was issued to TPL, adjudicating which the original authority disallowed the credit to the extent of ₹ 19,45,363/- on the ground that M/s MRL short paid the said amount by way of suppression of clearances. The question before the Tribunal was whether Rule 57E(3) which was enacted on 01.03.1997, could be applied to deny credits earned on inputs prior to 01.03.1997. The appellants had argued that credit earned on clearances of inputs prior to 1.3.1997 could not be denied invoking Rule 57E(3) of CER. The Tribunal held as below: 7. In the case of CCE v. R.H. Padmalochini (supra) , we held that Rule 57A vested right to credit of duty paid on inputs on the manufacturer of final products. Rule 57E was therefore procedural. Even in the absence of Rule 57E, recipients of inputs qualified to avail the total duty paid on the inputs even if part of it was paid subsequently following payment of the same by the supplier as adjudication levy. However, vide Osram Surya (P) Ltd. v. CCE, Indore case the Apex Court held that denial of credit beyond six months of the date of the duty paying documents legislated by an amen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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