TMI Blog2023 (5) TMI 859X X X X Extracts X X X X X X X X Extracts X X X X ..... eshyam Indani , Advocate , for the Appellant Shri Xavier Mascarenhas , Superintendent , Authorised Representative for the Respondent ORDER This appeal is directed against Order-in-Appeal No. NSK/EXCUS/000/APPL/215/19-20/6296 dated 17.03.2020 passed by the Commissioner of CGST Central Excise (Appeals), Nashik. By the impugned order, the Commissioner (Appeals) has upheld the order of the Assistant Commissioner rejecting the refund claim filed by the appellant. 2.1 Appellant has filed application for refund of Rs.17,70,534/- under Section 11B of the Central Excise Act, 1944 for the period 2001-02, 2004-05, 2005-06 and 2006-07 seeking refund of Cenvat credit on HSD/LDO/IDO used for generation of electricity. This refund claim was filed on 15.03.2019. 2.2 During the course of scrutiny, taking note of the fact that the appellant had filed refund claim after expiry of more than one year from the date of payment as stipulated under Section 11B of the Central Excise Act, show cause notice dated 10.05.2019 was issued to the appellant. The refund claim has been adjudicated rejecting the claim, by the Assistant Commissioner and the rejection has been upheld by the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and therefore filed the instant refund claim. The lower authority, however has not gone into the admissibility of the claim per-se and rejected the same solely on the grounds of time bar relying upon Section 11B(1) of CEA, 1944 which is extracted as below: (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 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 12A) 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 application for refund has been made before the commencement of the Central Excises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel for the appellant was to produce ER-1s on which credit sought to be refunded has been claimed. Counsel admitted that they have never claimed the credit on any of the ER-1s but the claim has been filed on the basis of the balance sheets showing the amounts as Cenvat credit receivable. They have entered into various correspondences with the Revenue authorities seeking the authorities to allow this credit. One of such correspondences is as reproduced below:- 4.3 In the Form R [application of refund of excise duty (interest)] filed by the appellant seeking refund, following has been stated:- b. Vide letter dated 20/02/2007, it had been submitted by us that, the LDO and IDO which had been utilized for generation of electricity, and that electricity had been utilized for manufacturing of Kraft Paper, and without availing the exemption provided under the law Central Excise Duty had been paid by us on kraft paper. Therefore, we were requested that kindly allow the CENVAT CREDIT of Rs. 3314605.30 involved in the HSD/ LDO / IDO, which were used for generation of electricity. However, in spite of reminder latter dated 14/03/2008, not allowed any credit and there w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r generation of electricity. f. Further, inputs used in generation of electricity are an ancillary activity which is anterior to process of manufacture of final product the said activity comes within the ambit definition of input, because it is integrally connected with manufacture of final product Rules 2(k) of Cenvat Credit Rules, 2004. g. Further when the electricity generation is a captive arrangement and the requirement is for carrying out the manufacturing activity, the electricity generation also forms parts of the manufacturing activity and the input used in that electricity generation is an input used in the manufacture of final product. h. In short, a manufacturer is entitled to cenvat credit on the eligible inputs (IDO) used in generation of electricity to the extent to which they are using the generated electricity, within their factory for manufacture of finished products on which excise duty is discharged. i. Thus we were rightly entitled to availed the Cenvat Credit on IDO, however, not availed under bona fide belief that various show cause notices were issued by the department by denying the cenvat credit availed on HSD/LDO used for generatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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