9911796707
TMI Blog2025 (4) TMI 884X X X X Extracts X X X X X X X X Extracts X X X X ..... cise Tariff Act, 1985. During the period from July, 2010 to September, 2011, the respondent had made payment of excise duty on CIF value of the goods exported by them. The excise duty so determined was discharged by debiting from the CENVAT Credit account maintained by the respondent. 3. Thereafter, the respondent filed 15 rebate claims with the jurisdictional Assistant Commissioner of Central Excise seeking rebate of excise duty paid on the export of finished goods in terms of Notification No. 19/2004-C.E.(N.T.) dated 06.09.2004. These rebate claims were duly audited by the audit section of the Department and thereafter disbursed in favour of the respondent on various dates. 4. Subsequently, proceedings were initiated against the respondent by the Ld. Commissioner of Central Excise and Service Tax, Haldia Commissionerate by invoking the extended period of limitation, by way of issuance of the Show Cause Notice dated 23.04.2015 alleging inter alia that the respondent had claimed excess refund of excise duty by way of including the value of freight charges and insurance charges with the FOB value in the respective A.R.E.-1 values. The Notice alleged that the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (v) While deciding the issue the ld. adjudicating authority has erred in concluding that the Department was in complete knowledge of the modus operandi followed by the Noticee while sanctioning the said rebate claims. (vi) The ld. adjudicating authority failed to appreciate that the assessee never disclosed the inclusion of Insurance and Freight in the Transaction value to the department in any manner. (vii) The ld. adjudicating authority erred in holding that the case was Audited hence there is no suppression. He failed to appreciate that they have not disclosed the inclusion of Insurance and Freight in Transaction value to the Audit department. (viii) The ld. adjudicating authority failed to appreciate that the assessee wilfully suppressed the fact of inclusion of Insurance and freight in transaction Value with intention to excess debit the duty and claimed excess Rebate fraudulently. (ix) The ld. adjudicating authority has erred in not considering the view that the noticee has wilfully suppressed the whole fact of excess debit of Central Excise duty on the practice of inclusion of insurance and freight etc. while submitting the claim of refund. (x) The ld. adjudicatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 97) ELT 465 (S.C.)] ii. ECE Industries Limited Versus Commissioner of Central Excise, New Delhi [2003 (3) TMI 136-SUPREME COURT] iii. M.K. Enterprises Versus Commissioner of CGST & CX, Patna-II Commissionerate (2023 (6) TMI 372-CESTAT KOLKATA] (ii) The respondent has been regularly filing its ER-1 returns. No objection or reservation of any kind whatsoever was raised in respect of the said ER-1 returns by the Department. Further, the rebate claims filed by the Respondent were duly audited by the audit section prior to sanction/disbursement thereof. Therefore, the modus operandi followed by the Respondent was within the knowledge of the Department while sanctioning the said rebate claims. The Respondent submits that it is a settled position in law that extended period cannot be invoked alleging suppression when the Department was fully aware of the facts of the case. Reliance in this regard is placed on the following judgments : i. Modipon Fibre Company Vs. Commissioner of C. Ex., Meerut (2007 (218) E.L.Τ. 8 (S.C.)] ii. NCR Corporation India Pvt. Ltd. Vs. Commr. Of C.T., Bangalore North [2021 (55) G.S.T.L. 6 (Tri. - Bang.)] iii. Purewal And Associates Ltd Versus Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund.Reference in this regard is made to the following judgments : i. SMT Machine (India) Ltd. vs. Commissioner of C. Ex. Chandigarh-1 [2016 (340) ELT 83 (P&H)] ii. Baroda Switchgears vs. Commissioner of C. Ex. &Cus., Vadodara-1 [2007 (216) ELT 387 (Tri.-Ahmd.)] iii. V.E. Commercial Vehicles Ltd. vs. Commr. of C.Ex. &S.Tax, Indore [2018 (15) GSTL 291 (Tri. Del.)] (vii) The refund of the excise duty has been sanctioned to the Respondent vide rebate orders dated 09.12.2010, 17.01.2011, 03.03.2011, 11.04.2011, 20.05.2011, 03.06.2011, 29.06.2011, 29.08.2011,26.09.2011, 18.10.2011 and 28.11.2011. Further, the Department has not filed any appeal against the said rebate orders contending or disputing the manner of calculation within the stipulated time limit. In the present case, since no appeal has been preferred by the Department, the refund order has attained finality; therefore it is not open to the Department to deny the refund. Something which cannot be taken directly cannot be recovered indirectly. In this regard, reliance is also placed on the decision in the case of M/s. Honda Siel Power Products Versus Union of India Through Secy. And Another 2019 (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be re- credited, is required to be paid in cash. Thus, even if the amount of refund is restricted to the duty paid on the FOB value, the balance amount is either to be re- credited or paid in cash, in view of the introduction of the G.S.T. law. 11. We further observe that the Show Cause Notice has been issued by invoking the extended period of limitation. In this regard, it is an admitted position that the issue of payment of duty on CIF value was known to the Department as the very same issue had been adjudicated vide order dated 31.03.2014. Thus, for the subsequent period, the demand cannot be raised by invoking suppression clause for the extended period of limitation, as has been held by the Hon'ble Supreme Court in the case of Nizam Sugar Factory v. Collector of Central Excise, A.P. [2006 (197) E.L.T. 465 (S.C.)] wherein it was observed as under: - "9. Allegation of suppression of facts against the appellant cannot be sustained. When the first SCN was issued all the relevant facts were in the knowledge of the authorities. Later on, while issuing the second and third show cause notices the same/similar facts could not be taken as suppression of facts on the part of the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re was no objection or reservation of any kind whatsoever. The rebate claims also pre-audited before sanction/disbursement thereof and I mean therefore, the department was in complete knowledge of the modus followed by the Noticee while sanctioning the said rebate claims But Show Cause Notice was issued on 23.4.2015 invoking the extended period of limitation when there is no fraud, collusion or any willful mis-statement or suppression of facts, or contravention of any provisions of the Excise Act or the rules made thereunder or intent to evade any payment of duty on the part of the assessee under the proviso to Section 11A of the Excise Act. The department has full knowledge and the show cause notice issued beyond its limitation and extended period of limitations is not sustainable in the instant case. I am of the opinion for applying the ratio of the Apex Court's judgement in the case of Tamil Nadu Housing Board Vs. CCE reported in 1994(74) ELT9 in this instant case." 13. In view of the above, we do not find any infirmity in the impugned order passed by the ld. adjudicating authority. Accordingly, we hold that the order passed by the ld. adjudicating authority dropping the de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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