9911796707
TMI Blog2025 (4) TMI 752X X X X Extracts X X X X X X X X Extracts X X X X ..... 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)/cash. b. 24.03.2002 The Appellant started its commercial production. c. 24.03.2002 to 22.12.2002 The entire excise duty paid by the Appellants during this period was paid using account current (PLA). The Appellant took refund of such excise duty 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 after utilizing the entire amount of CENVAT credit availed of. NN-42/2002-CE (NT) was also brought into effect amending Rule 3 of the CENVAT Credit Rules, 2002. By this amendment, it was stipulated that CENVAT credit of duty paid on inputs of the final pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , thereby sanctioning refund of only Rs. 78,53,725/- for the period of August 2006. Being aggrieved by the aforesaid order, the Appellant preferred an appeal before the Ld. Commissioner (Appeals), Guwahati. j. 13.11.2006 The Ld. Comm. (Appeals) dismissed the appeal filed by the Appellant against recovery order dated 03.06.2003. Being aggrieved by such order, the Appellant filed an appeal before this Tribunal. k. 31.05.2007 The Hon'ble CESTAT, Kolkata set aside the order dated 13.11.2006 on the ground of violation of principles of natural justice and remanded the matter back to the original authority for fresh decision with a specific observation that only if there is any unutilized balance of Cenvat credit pertaining to period upto 22.12.2002 on the date of enactment of Finance Act, 2003, the same shall be liable to be recovered. Since the department did not give opportunity to produce such data to the Appellant before passing the order dated 03.06.2003, the Appellant was directed to produce such data for consideration of the department.[Pg 34-35 of the Memo of Appeal] l. 10.09.2007 The Ld. Comm (Appeals) dismissed the appeal filed by the Appellant against refund app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Appellant during the months of May 2003 (when NN-61/02 was given retrospective effect), the appellants had fully utilized the accumulated Cenvat credit. 4.4 Because of such utilization of Cenvat credit during the period from 23.12.2002 to 31.01.2003, the refunds in these subsequent months i.e., from December 2002 to February 2003 were reduced to the extent of accumulated balance of input Cenvat credit as on 22.12.2002. Thus, in lights of these facts, it is submitted, that the excess refund that the department claimed to have sanctioned lower refund claim during the period from December 2002 to February 2003 on account of the subsequent utilization of the accumulated Cenvat Credit. 4.5 The intent with which the amendments of Notification No.61/2002 were given retrospective effect, vide Finance Act, 2003, was met by the Appellants upto the date of its enactment. Even the provisions of Section 153(4) have been wrongly interpreted by the department in the present case to mean that the said provision mandates the recovery of refund by only confirming the duty payment and credit accumulation to the period upto 22.12.2002. This is neither brought out from the express language of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received by them during the period December 2002 to February 2003. 9. We find that this Bench in the case of Ozone Pharmaceuticals vs. Commissioner of Central Excise & S.T., Guwahati, cited supra, has dealt with identical issue and has held as under :- f. 23.12.2002 onwards till June 2003 The Appellants accordingly amended their system and started utilizing CENVAT credit for payment of duty on clearance of its final products. The entire accumulated CENVAT credit as on 22.12.2002 was utilized by the Appellants during this period, leading to the scenario of Nil refund during the period February 2003 to May 2003. "6. We find that the similar issue has been dealt with by this Tribunal in the case of M/s Singla Cables (supra), wherein this Tribunal has recorded as under : "6. In this case, though during February 2006 to April 2006 period, the appellant for whatever reason, did not take Cenvat credit of Rs.10,72,419/- in respect of SAD resulting in higher quantum of exemption under Notification No. 56/2002-CE and thus higher quantum of refund, in December 2006 as soon as this was pointed out, they took the Cenvat credit of this amount, as a result of this in the month of Dece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -, March 06 it was Rs. 4030/-, April 06 it was Rs. 6885/-, July 06 it was Rs. 180/- only. This shows that the appellants had exhausted the Cenvat balance at some point or other if not in the respective months for which they filed the refund claims. However, mandatory condition of the notification i.e. the manufacturer first utilizes whole of the Cenvat Credit available to him on the last date of the month shall be fulfilled invariably for the claim of refund of cash duty paid for that month. But keeping in view, the appellants' applying for the benefit of notification No. 56/2002- C.E., dated 14-11-2002 in the month of February, 2005 and their case being finalized in the month of October, 2006 (w.e.f. 25-1- 2005) i.e. after a period of one year and eight months, I take a lenient view towards non-fulfilment of condition of the notification by the appellants." 4. As is seen above, the credit which was required to be utilized in the previous months was subsequently utilized by the assessee in the succeeding months, the entire situation is revenue neutral and the Appellate Authority has rightly held that an interpretation which defeat the purpose of the notification should be avoide ..... X X X X Extracts X X X X X X X X Extracts X X X X
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