TMI Blog2022 (12) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... econd Show Cause Notice and rejected the claim stating that there is delay on the part of the appellant to press for processing of the claim. How can the appellant be said to be at fault when the matter has been remanded by Commissioner (Appeals) directing to re-examine the matter after issuing Show Cause Notice. After hearing the matter on 8.9.2022, it was posted for clarification on the side of the department as to whether there is a dispute with regard to the balance available in their register as on the date of filing the refund claim. The department has not put forward any reply or clarification. From the arguments put forward by the learned counsel for appellant and also the photocopies of the relevant part of the registers furnished by the learned counsel for the appellant, I find that the contention of the appellant that there was wrong debit entry and contra credit entry made in the registers is not without substance. From the letters written by the appellant to the department, it is seen that they have produced these documents before the authorities below also. The rejection of refund claim is on erroneous facts and misconception of Rule 57F of Central Excise Rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the adjudicating authority that in RG23A Part II (Export Register) the appellant had debited an amount of Rs.3,45,644/- towards the refund claim earlier sanctioned to them. Further, goods exported by them to Sri Lanka as per AR4 No. 25 to 29/95-96 on 26.12.1995 were called back since the customer had not cleared the goods. These goods were later cleared by appellant for home consumption. The appellant ought to have debited an amount of Rs.3,38,564/- in regard to these returned goods. The adjudicating authority opined that if this amount pertaining to returned goods are expunged in RG23A Part II (Export Register) then the closing balance of credit in export register as on 31.3.1999 will only be Rs.20,574/- (Rs.3,59,138/- minus Rs.3,38,564/-). It was thus held by the adjudicating authority that the MODVAT credit pertaining to the subsequent export which is claimed as refund of Rs.2,97,007/- has already been utilized by the appellant. That the remaining balance being only Rs.20,574/-, the refund claim was rejected by the original authority. 5. Against such order, the appellant filed appeal before Commissioner (Appeals). The appellant explained before the first appellate authority t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that they were continuously corresponding and asking for personal hearing after remand of the matter and issuance of Show Cause Notice dated 9.2.2000. They also mentioned about the order passed by the Commissioner (Appeals). The said Show Cause Notice dated 10.3.2015 was taken up for adjudication and Order in Original No. 204/2015 dated 6.8.2015 was passed wherein the refund claim was rejected. The main reason for rejecting the refund claim is that the assessee has kept quiet for long time and has not pressed for the refund from 2000 to 2008 and then from the year 2009 2013. The adjudicating authority has rejected the refund claim on the ground that there is laches on the part of the appellant. 9. Subsequently, the appellant moved the Hon'ble High Court by filing W.P. No. 29132/2015 seeking direction to adjudicate the earlier Show Cause Notice dated 9.2.2000 issued to them. The writ petition was disposed by the Hon'ble High Court directing to adjudicate the Show Cause Notice dated 9.2.2000 within a period of six weeks. Thereupon, the original authority passed Order in Original No. 25/16 dated 17.2.2016 rejecting the refund claim. The claim was rejected on the ground t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t appeal is filed against the said order passed by the Commissioner (Appeals) who upheld the view taken by the original authority that the appellant would be able to use the unutilized credit and therefore cash refund need not be sanctioned. 11. The learned counsel Shri N. Viswanathan appeared and argued for the appellant. He explained that the main ground for rejecting the refund is that the appellant would be able to utilize the credit for payment of duty on finished products cleared for home consumption. He adverted to Rule 57F(13) which reads as under:- Rule 57F. Manner of utilisation of inputs and the credit allowed in respect of duty paid thereon ***** ****** ****** ***** Where any inputs are used in the final products which are cleared for export under bond or used in the intermediate products cleared for export in accordance with sub-rule (4), the credit of specified duty in respect of the inputs so used shall be allowed to be utilized by the manufacturer towards payment of duty of excise on any final products cleared for home consumption or for export on payment of duty and where for any reason such adjustment is not possible, the manufacturer shall be al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for domestic clearances. The entire confusion arose as the appellant had made some wrong debit entry in their export register instead of debiting in their domestic register. On perusal of RG23A Part II (Export Register), it would show that as on 8.1.1999, the appellant had a credit balance of Rs.7,87,065/-. Out of this, the appellant made four wrong debit entries to the tune of Rs.4,13,077/- in their export register. These debit entries ought to have been made in RG 23A Part II domestic register as it pertained to clearances on account of the home consumption. These wrong debit entries made by them in their export register to the tune of Rs.4,13,077/- was later corrected by the appellant by debiting in their domestic register. The credit balance lying as on 1.8.1999 in their domestic register was Rs.11,09,952/- by correcting the wrong entries, the balance in domestic register was brought down to Rs.6,96,815/-. Corresponding recredit entry was made by them in their RG23A Part II (Export Register) and the balance in the export register as on 1.8.1999 stood as Rs.7,72,215/-. The allegation in the Show Cause Notice that the balance in the export register is merely Rs.20,574/- is incor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be said to be at fault when the matter has been remanded by Commissioner (Appeals) directing to re-examine the matter after issuing Show Cause Notice. 20. Be that as it may, pursuant to the direction of the Hon'ble High Court, the Show Cause Notice dated 9.2.2000 was taken up for adjudication. The refund claim was rejected again observing that during the material period, the appellant was in a position to utilize the accumulated credit for payment of duty on goods cleared for home consumption. In para 12 of the Order in Original, the original authority has discussed this view in detail. It is strange that even after the remand by the Commissioner (Appeals) directing to look into the error committed by the original authority in the first round of litigation, the department has again rejected the claim contending that it is possible for appellant to utilize the accumulated credit. 21. In para 9, 10, 11, the original authority has indeed discussed as to whether there is sufficient balance for granting the refund. The argument put forward by the appellant with regard to the wrong entries made by them in their separate RG23A Part II registers have also been mentioned. The lear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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