2010 (12) TMI 583 - AT - Central Excise

Tribunal rejects appeal on retrospective adjustment of refund claim, upholds Commissioner's order

The Tribunal upheld the Commissioner's order, stating that the Appellants' attempt to retrospectively adjust excess payments in their January 2003 refund ... Refund claim - Area based exemption - Adjustment of excess re-fund - Notification No. 33/99 dated 8-7-1999 was amended by Notification No. 61/2002 dated 23-12-2002 which restricting the refund - There is no dispute before us that an amount of Rs. 35, 31,810/- was paid to the Appellant in excess during the relevant period - The claim of the Appellant is that they have adjusted the excess payment voluntarily in their refund claim for January, 2003 - There is no request for any adjustment of amount paid to them in excess during the period September to December, 2002 - The entire amount as claimed by them stands sanctioned -Merely because certain amounts were lying in the CENVAT Account which could have been used by them otherwise for paying the duty amount, it cannot be presumed that an excess amount has been sanctioned as refund and adjusted - The adjustments sought for by the Appellants will amount to re-casting the refund claim filed by the Appellants as if it was for a higher amount and showing as if part of the amount stand adjusted - This type of adjustment of is neither desirable nor permissible - Decided against the assessee. Issues:Appeal against order of Commissioner regarding excess payment and refund adjustment under Notification No. 33/99 dated 8-7-1999.Analysis:The case involved an appeal against the Commissioner's order dated 10-4-2006 regarding an excess payment of Rs. 35,31,810/- by the Appellants due to a retrospective amendment to Notification No. 33/99 dated 8-7-1999. The amendment restricted the quantum of refund available, leading to the demand for repayment. The Appellants claimed to have voluntarily adjusted the excess amount in their refund claim for January 2003, but the Commissioner directed them to pay the amount. The Appellants argued that they had informed the Assistant Commissioner about the adjustment and relied on a worksheet showing the excess payments made in previous months. They contended that the entire excess refund had been adjusted in the January 2003 claim, which was within their rights under the Board's Circular No. B-3/5/2003-TRU. However, the Commissioner upheld the demand for repayment.Upon careful consideration, the Tribunal noted that the retrospective amendment to Notification No. 33/99 had led to the excess payment to the Appellants. The Appellants claimed to have adjusted the excess amount voluntarily in their January 2003 refund claim. However, upon reviewing the refund claim filed for January 2003, it was found that the Appellants had only claimed a specific amount as a refund without any mention of adjusting the excess payments made in the previous months. The Tribunal observed that the refund claim was for a specific amount, which was duly sanctioned, and there was no provision for adjusting excess payments retrospectively. The Tribunal emphasized that the adjustment sought by the Appellants would essentially alter the refund claim and was not permissible under the circumstances. Therefore, the Tribunal found no fault in the Commissioner's order and rejected the appeal.In conclusion, the Tribunal upheld the Commissioner's order, emphasizing that the Appellants' attempt to retrospectively adjust excess payments made in previous months in their January 2003 refund claim was not permissible. The Tribunal highlighted that the refund claim was for a specific amount, which was sanctioned accordingly, and any adjustments beyond that were not supported by the law. Consequently, the appeal against the order demanding repayment of the excess amount was rejected.