TMI Blog2008 (1) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... o this appeal are as under : 3. The respondent-assessee, who is a merchant-exporter of pharmaceuticals products, filed a refund claim of Rs. 9,69,250/- in the office of Asstt. Commissioner, Central Excise Division II, Gurgaon on 21-6-2002 claiming therein that during the year 2001-2002 the company imported 96 kgs of raw material called "Prednisolone Sodium Phosphate" on which an amount of duty in the form of CVD (Counter Veiling Duty) for Rs. 9,69,250/- was paid and the company got manufactured their product called "Prednisolone Sodium Phosphate injection BP from one of their loan licensee M/s. Getwell Pharmaceuticals. It was further claimed that the total raw material was used in manufacture of final product by the loan licensee and the goods manufactured were exported out of India and that no MODVAT/CENVAT was availed by them or by their manufacturer namely M/s. Getwell Pharmaceuticals on the consumption of 96 kgs of the afore said raw material to manufacture 6,24,172 packs of the Prednisolone injection and that since CVD amounting to Rs. 9,69,250/- has been paid by them on excisable material used in the manufacture of the goods so got manufactured from loan licensee and expo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Cenvat Credit purpose under Rule 7(1)(c) but the stage for refund of CENVAT Credit arises only after the CENVAT Credit on the inputs has been availed and under the CENVAT Credit Rules the manufacturer is also required to maintain proper Accounts for receipt, disposal, consumption and inventory of the inputs and is also required to submit monthly return in the prescribed form. Since the party didn't take CENVAT Credit of the CVD paid on the inputs the provisions regarding CENVAT Credit Rules, 2002 as stated by the party in their defence reply appeared misplaced. This is a case of refund of CVD in respect of the materials used in the manufacture of excisable goods exported out of India and as such the refund of CVD charged under Customs Tariff Act, 1975 is not covered under the Section 11B of the Central Excise Act, 1944. Further the party filed the refund claim under Section 11B of the Central Excise Act, 1944 which presented a time limit of 1 year from the "relevant date" since the duty in respect of B.E. No. 140911 dated 4-5-2001 was paid on 8-5-2001 the claim in respect of the BE is time-barred per Se. The various case laws as referred to by the party only go to confi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Additional Customs Duty i.e. CVD. The claim of the appellant is for refund of CVD which is clearly not covered under this Section. Reliance placed by the appellant on the Hon'ble Supreme Court judgment reported as.1997 (90) ELT 7 (SC) is totally misplaced. Nowhere it has been held in the cited case that CVD can be treated as Central Excise duty for all purposes including refund. Thus, I agree with the original authority that CVD cannot be equated with the duty Excise. The refund of CVD, is therefore, not admissible under Section 11B of the Central Excise Act, 1944 and has been rightly so held by the original authority. The point of limitation raised by the appellant is not relevant at this stage as the claim is held as not covered under the provisions of Section 11B as discussed above." 5. Aggrieved against the order of the lower authorities, the assessee preferred an appeal before the Customs, Excise Service Tax Appellate Tribunal, New Delhi. The Tribunal after considering the various provisions of the Central Excise Act and Customs Tariff Act and the submissions made by the rival parties held that sub-section 2(a) of Section 11B of the Central Excise Act, 1944 clearl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11B. Claim for refund of duty. - (1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] before the expiry of [one year][from the relevant dated][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 12A as the applicant may furnish to establish that the amount of duty of excise in relation to which such refund is claimed was collected from or paid by him and the incidence of such duty had not been passed on by him to any other person : Provided that where an application for refund has been made before the commencement of the Central Excise and Customs Laws (Amendment) Act, 1991 (40 of 1991), such application shall be deemed to have been made under this sub-section as amended by the Act and the same shall be dealt with in accordance with the provisions of Sub-Section (2) as substituted by that Act:] [Provided further that] the limitation of [one year] shall not apply where any duty has been paid under protest. [(2) If, on re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een days beginning with the day on which the notification is so laid before the House of the People and if Parliament makes any modification in the notification or directs that the notification should cease to have effect, the notification shall thereafter have effect only in such modified form or be of no effect, as the case may be, but without prejudice to the validity of anything previously done thereunder. (5) For the removal of doubts, it is hereby declared that any notification issued under clause (f) of the first proviso to sub-section (2), including any such notification approved or modified under sub-section (4), may be rescinded by the Central Government at any time by notification in the Official Gazette.] [Explanation - For the purposes of this section, - (A) "refund" includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (B) "relevant date" means, - (a) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be, the excisable materials used in the manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cidence of such duty had not been passed on by him to any other person. Proviso (A) to sub-section (2) of Section 11B further provides that if the competent authority is satisfied that the whole or any part of the duty of excise paid by the applicant is refundable he may make an order accordingly and the amount so determined instead of being credited to 'The FUND' be paid to him if such amount is relatable to rebate on duty of excise on excisable goods exported out of India or on excisable material used in the manufacture of goods which are exported out of India. Explanation (A) of Section 11B of the Central Excise Act, 1944 has further clarified the issue "refund" includes rebate of duty of excise on excisable goods out of the India or on excisable material used in the manufacture of goods which are exported out of India. Section 3(1) of the Central Excise Act, 1944 provides for levying and collection of duty of excise/special duty of excise to be called the Central Value Added Tax (CENVAT) on all excisable goods which are produced or manufactured in India and at the rates set forth in the First and Second Schedules to the Central Excise Tariff Act, 1985, The provision to this Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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