TMI Blog2017 (7) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... of cash, contrary to what the Tribunal has indicated. This is the only viable and practical approach which can be adopted in the instant case as the Revenue does not dispute the fact that the final product manufactured by the assessee which is fabric, is no longer amenable to excise duty. In these circumstances, quite obviously, the re-credit of duty as ordered by the Tribunal via impugned Judgment or Order will not serve any purpose insofar as the Assessee is concerned. Refund allowed - Appeal allowed - decided in favor of appellant. - C.M.A. Nos. 2518 to 2520 of 2015 and M. P. Nos. 2 & 2/2015 - - - Dated:- 5-6-2017 - Rajiv Shakdher And R. Suresh Kumar, JJ. For Appellant : Mr.K.S.Venkatagiri For Respondent : Mr.A.P.Srinivas JUDGEMENT ( Order of the Court was delivered by Rajiv Shakdher , J. ) 1. These three appeals have been filed by the Assessee against the common order dated 26.6.2015, passed by the Customs Excise and Service Tax Appellate Tribunal (in short the Tribunal). The Tribunal in the operative part of its impugned Judgment and order has partly allowed the appeals of both the Assessee and the Revenue and furthermore, directed that the refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se notice dated 29.4.2003 to the assessee. By virtue of the said show cause notice, a demand in sum of ₹ 36,46,072 was raised on the Assessee and the credit of AED (T TA) was utilized by the Assessee to pay BED/AED (GSI). The said demand was raised by the Revenue evidently under Rule 12 of CENVAT Credit Rules 2001 (in short, 2001 Rules ) r/w the proviso to Section 11(A)(1) of Central Excise Act, 1944 (in short, CE Act ). It was the Department's stand that the Assessee could not have utilized the duty credit available vis-a-vis inputs, that is, yarn against the duty payable on fabric in terms of the 2001 Rules. 3.3. The matter went to adjudication and by virtue of an order-in-original dated 8.1.2004, duty to the extent of ₹ 32,40,810/- was confirmed. The Assessee was given credit to the extent of ₹ 3,65,652/- as that was the amount which had already been paid by it. 3.4. The assessee being aggrieved, preferred an appeal to the Commissioner of Central Excise Appeals [in short, Commissioner (Appeals) ], Salem. The appeal however, was dismissed on 15.09.2004, resultantly, the demand to the extent of ₹ 32,40,810/- was confirmed. The said order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0,023/- was rejected. 4.2. The Assessee being aggrieved by part rejection of its refund claim preferred an appeal against the order dated 21.11.2008, passed by the Deputy Commissioner. Similarly, the Revenue also preferred an appeal against the sanction of refund of ₹ 10,00,000/- in cash in favour of the Assessee. It appears that while the appeal of the Revenue was pending, the show cause notice dated 23.6.2009 was issued by the Additional Commissioner of Central Excise, Salem for recovery of the sum of ₹ 10,00,000/- by which refund had been ordered in favour of the Assessee. The main plank on which the said show cause notice was issued was that the refund in cash could be ordered only where the final product or intermediate goods are exported. In other words, the recourse was sought to be taken to Rule 5 of the 2004 Rules. 4.3. As luck would have it, the Commissioner (Appeals) upheld the Deputy Commissioner's order sanctioning the refund of ₹ 10,00,000/- in cash in favour of the Assessee vide order dated 29.7.2009. However, the Assessee's appeal against the rejection of the claim of the refund of ₹ 20,60,023/- was dismissed via, separate order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urthermore, it is the learned counsel's submission that Rule 5 of 2004 Rules applies where there is unutilized credit available in the CENVAT Credit Account. It is the learned counsel's submission that in this case the amount credited in the assessee's CENVAT Credit Account stood utilized upon debit entries being passed on 15.3.2005 and 15.3.2007. According to the learned counsel, the authorities below misdirected themselves by concentrating upon Rule 5 of 2004 Rules. 7. It was therefore, the submission of Mr.Venkatagiri that refund in cash was payable to the Assessee and in that behalf the claim had to be processed under Section 11(B)(2)(c) of the CE Act, 1944. According to the learned counsel, the Assessee was entitled to refund of credit of duty paid by it on excisable goods used as inputs, in accordance with the rules or any notification issued under the CE Act. 8. The learned counsel also drew out attention to the fact that the provision while defining the relevant date for the purpose of limitation has taken into account the fact that duty may become refundable as a consequence of a Judgment, Decree, Order or Direction of the Appellate Authority, Appellate T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come to the aid of the Assessee. We may also note that there is no dispute that the refund claimed by the assessee is within the period of limitation as prescribed under sub section (1) of Section 11 B. In order to appreciate the point in issue, it may be relevant to extract the relevant provisions hereafter: 11B. Claim for refund of duty (1) Any person claiming refund of any duty of excise and interest, if any, paid on such duty may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from the relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12-A) as the applicant may furnish to establish that the amount of duty of excise and interest, if any, paid on such duty in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such duty and interest, if any, paid on such duty had not been passed on by him to any other person: Provided that where an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 12.1 The proviso to sub section (2) of Section 11 B, on the other hand, empowers the concerned Officer to pay the amount of excise duty and interest, if any paid on such duty, as may be determined, to the applicant, in the circumstances contemplated under clause (a) to (f), instead of crediting the amount to the Fund. 12.2. The learned counsel for the Assessee has, correctly, argued that the Assessee would fall under clause (c) of Section 11 B of the CE Act. The said clause requires the concerned officer to refund credit of duty paid on excisable goods used as inputs in accordance with rules made or any notification issued under the CE Act. Clearly, once, determination has been made by the concerned officer with regard to what is provided in clause (c), the concerned Officer would be required to pay the amount to the applicant. 12.3. There is no dispute that excisable inputs such as yarn was used in the manufacture of the final product i.e., fabric. The amount paid as a condition of interim stay imposed by the Tribunal in the earlier round vide order dated 11.3.2005 was credited to the Revenue by debiting the CENVAT Credit Account. The sum credited at that stage was an a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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