2008 (7) TMI 355 - AT - Central Excise

Refund of duty entitlement & limitation period for demands under Central Excise Act

The case involved the entitlement to the benefit of refund of duty under Notification No. 39/2001-C.E. and the limitation period for demands under Section ... Scheme of area-specific exemption - factory in Kutch - benefit of Notification No. 39/2001-C.E., dated 31-7-2001 - appellants have opted for self-credit procedure under clause 2A of the Notification - credit utilization for service tax payment on GTA - entire case of the Revenue is on the premise that the appellants committed breach of conditions of Notification No. 39/01-C.E. and hence they should pay back the entire amount of duty, of which credit had been taken in PLA under para 2A of the Notification - case of the Revenue can hardly be sustained inasmuch as the assessee's breach, if any, was occasioned by the breach of procedure committed by the Central Excise Officer Issues Involved:1. Entitlement to the benefit of refund of duty under Notification No. 39/2001-C.E.2. Limitation period for demands under Section 11A of the Central Excise Act, 1944.Detailed Analysis:Entitlement to the Benefit of Refund of Duty:The appellants, engaged in the manufacture of biscuits and corrugated boxes in Kutch District, Gujarat, availed the benefit of Notification No. 39/2001-C.E., which allows manufacturers to utilize Cenvat credit and pay the balance duty in cash, which is refundable. The appellants opted for the self-credit procedure under clause 2A of the Notification. However, they utilized Rs. 20,19,827/- from the Cenvat credit account for payment of service tax on GTA services, which they later realized was a violation of the Notification's conditions. They subsequently deposited the service tax and education cess in cash and informed the department.The lower authorities held that the appellants, having opted for the re-credit facility, were responsible for ensuring the correct amount of duty paid other than by utilizing Cenvat credit. The Assistant Commissioner's letters intimating the refundable amount were considered refund orders under Section 11B of the Act, making the date of such orders the relevant date for issuing notices of erroneous refund under Section 11A. The adjudicating authority's power was not exceeded as the amount involved in each show cause notice was below Rs. 5 lakhs.The appellants argued that the total Cenvat credit available was Rs. 2.7 crores, and the credit utilized for service tax was Rs. 20.20 lakhs, utilized by oversight, thus constituting substantive compliance with the Notification. They contended that the excess refund became revenue neutral upon making the cash payment, fulfilling the Notification's intention. The demands for May and July 2005 were argued to be barred under limitation as they were issued beyond one year from the relevant date.Limitation Period for Demands:The Tribunal agreed that the self-credit of refund taken by the appellants to the extent of Rs. 20,19,827/- was irregular and recoverable. Clause 2A(e) of the Notification required the Assistant Commissioner to determine the refundable amount and intimate it by the 15th of the next month. The Assistant Commissioner communicated the excess refund only on 30-6-06 for May and June 2005, making the demands for these months beyond the one-year limitation period.Separate Judgments:Member (Technical): Held that the demand for May and July 2005 was non-sustainable due to limitation but did not accept the argument that subsequent cash payment regularized the omission for the other months. The Notification envisaged monthly accountal and recovery procedures, and the proper action upon finding excess refund was to repay the amount with interest.Member (Judicial): Argued that subsequent payment of service tax in cash corrected the records, making the credit admissible and not irregular. Thus, the appeal should be allowed in toto.Third Member (Judicial): Concurred with the Member (Judicial), noting that the Notification's conditions were breached by the Revenue's delay in determining the refundable amount, which led to the appellant's breach. The appeal was allowed in its entirety.Final Order:In view of the majority decision, the impugned order was set aside, and the appeal was allowed in its totality.