9911796707
TMI Blog2023 (11) TMI 964X X X X Extracts X X X X X X X X Extracts X X X X ..... 1999 NN-32/99-CE was brought into effect wherein excise duty exemption was granted to goods cleared from units located in Export Promotion Industrial Parks (EPIP) in the State of Assam. The exemption was available to new industrial units which commenced its commercial production on or after 24.12.1997. In terms of the notification, the exemption was given effect to by refunding the entire amount of excise duty paid by an assessee using its account current (PLA). b. May - June 2001 The Appellants set up manufacturing plants at Bamunimaidan Industrial Estate, Guwahati and started their commercial production. c. May 2001 to 22.12.2002 The entire excise duty paid by the Appellants during this period was paid using account current (PLA). The Appellants took refund of such excise duty paid through PLA which was also allowed by the proper officer as the same was in compliance of the notification. The CENVAT credit availed by the Appellants on inputs and capital goods during such period kept on accumulating. d. 23.12.2002 NN-61/2002-CE was brought into effect amending NN-32/99-CE. By this amendment, a manufacturer was only allowed refund of excise duty paid through PLA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant submits that immediately after the amendment of NN-32/99-CE, vide NN-61/02-CE w.e.f. 23.12.2002, they started utilizing the accumulated CENVAT credit on inputs as well as capital goods available with them diligently towards the payment of duty for subsequent months. Starting from 23.12.2002, they have utilized CENVAT credit for the payment of duty and on the continuous utilization, the balance in the CENVAT account became "Nil". 3.1 Therefore, as soon as the NN-32/99-CE was amended on 22.12.2002, they were obediently followed the same and utilized the accumulated CENVAT credit for the payment of duty. Such was the impact of utilization of the CENVAT credit that no refund was claimed/ sanctioned to them for some months in 2003. During this period, duty was paid from PLA and refund was claimed only after completely exhausting the CENVAT credit balance. Thus, in light of these facts, they submitted that the excess refund that the department claimed to have sanctioned to the Appellant upto 22.12.2002 was adjusted by sanctioning lower/nil refund claims during the period subsequent to 23.12.2002 on account of the utilization of the accumulated CENVAT credit. 3.2 The intent with whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Ltd vs. Collector of Central Excise, New Delhi, 1997 (78) ELT 207 (Tribunal) ,HMT Ltd vs. Commr. of Cus. & C. Ex., Hyderabad, 2001 (136) ELT 850 (Tri-Chennai). 3.6 The Appellant further submits that in the present case as well, the purpose for which the amendment in NN-32/99-CE by NN-61/02- CE was brought into effect was never frustrated by them and no excess benefit was availed by them upto the introduction of the Finance Act, 2003. This is because if duty payment and consequent refund starting from May 2001 till May/ June 2003 are taken into consideration together it comes equal of the total duty less the amount of CENVAT credit availed. This shows that even if they would have utilized the CENVAT credit from the beginning the situation would have been same as it stood in June 2003, because of subsequent utilization of accumulated CENVAT credit. Thus, the purpose for which amendment in NN-32/99-CE by NN-61/02-CE was brought into effect was fulfilled by them. 3.7 It is submitted that it is settled principle of law that demand is not sustainable when the situation is revenue neutral. The Appellant, in this regard, seek to place reliance on the following rulings: Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... soon as this was pointed out, they took the Cenvat credit of this amount, as a result of this in the month of December 2006 their refund claim was lesser to that extent. Thus, overall there was no excess availment of exemption under Notification No. 56/2002-CE, as the excess quantum of refund under Notification No. 56/2002-CE during February 2006 to April 2006, was neutralized by lesser quantum of refund under this notification during December 2006. 7. A similar case came up before this Tribunal in the case of New India Wire and Cables [2008 (232) ELT 681 (Tri-Del)] wherein the assessee did not take the available Cenvat credit during the period it was available and paid the excess from the PLA and took the refund thereof. Later on, they took Cenvat credit which was available and paid less duty. In that case, the excess refund availed by the assessee during the initial period was sought to be denied. In that case, this Tribunal held that it is situation of revenue neutrality, therefore denial of refund is not sustainable." 7. Further, in the case of New India Wire & Cables (supra), this Tribunal, has observed as under : "2. After hearing both the sides we find that in terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellate Authority has rightly held that an interpretation which defeat the purpose of the notification should be avoided. As such, we do not find any infirmity in the view adopted by the Appellate Authority and reject the appeal filed by the Revenue." 8. In view of this, we hold that the issue is no more res integra. Accordingly, we hold that the refund claim of the appellants for the subsequent period, could not be rejected on the ground that the appellant has taken excess refund for the period prior to 22.12.2002, therefore, no demand is sustainable against the appellant as demanded in view of the letter dated 03.06.2003 by the Deputy Commissioner and the refund for the period August, 2006 to October, 2006 were not required to be appropriated. 9. In view of this, we aside the impugned order and allow both the appeals with consequential relief, if any 5. We observe that the ratio of the above cited decision is squarely applicable in this case as the facts and circumstances of the present case on hand is same as the case cited above. Thus, by following the ratio of the above cited decision, we hold that the demand confirmed in the impugned order is not sustainable. Accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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