2017 (12) TMI 1429 - AT - Central Excise

Commissioner's decision upheld, Revenue's appeals dismissed. Remand for proper consideration. Order required within 60 days.

The Member (Judicial) upheld the Commissioner (Appeals)' decision to remand a refund claim matter back to the Adjudicating Authority for proper ... Refund claim - CBEC Board’s Circular No.120/01/2010-ST dated 19/01/2010 - Whether the Commissioner (Appeals) have rightly set aside the impugned Order-in-Original and remanded the matter back with the direction to consider the matter afresh on the basis of all the documents/information, by giving opportunity of hearing? Held that: - CBEC Board’s Circular No.120/01/2010-ST dated 19/01/2010 categorically clarified that irrespective of when the credit was taken, the refund should be granted if otherwise in order - there is no error in the finding of the Learned Commissioner (Appeals) wherein he have directed the Adjudicating Authority to reconsider the refund claim in accordance with law, more particularly in view of Board Circular which have been issued subsequent to the passing of the Order-in-Original - appeal dismissed - decided against Revenue. Issues: Whether the Commissioner (Appeals) rightly set aside the Order-in-Original and remanded the matter for reconsideration based on all documents and information, providing an opportunity for a hearing.Analysis:The appellant, a 100% EOU engaged in manufacturing and exporting Bulk Medicines, filed refund applications under Rule 5 of the Cenvat Credit Rules, 2004, for unutilized input credit. The refund claims covered specific periods and were rejected by the Adjudicating Authority due to unanswered queries and grounds mentioned in the notices to show cause. The appellants contended that they were unable to utilize the Cenvat credit and were entitled to a refund as per Rule 5, emphasizing the lack of a requirement for a one-to-one correlation between input services and exported final products for a specific period. They cited a relevant ruling to support their argument.The Commissioner (Appeals) referred to a CBEC Circular clarifying that refunds should be granted irrespective of when the credit was taken if found in order. The Circular directed immediate implementation and disposal of pending claims based on the instructions provided. Observing that the respondent's refund claim was not examined on merits in light of the Circular, the Commissioner remanded the matter for proper consideration.Upon review, the Member (Judicial) found no error in the Commissioner's decision to direct the Adjudicating Authority to reconsider the refund claim in line with the law and the Circular issued post the Order-in-Original. Consequently, the appeals filed by Revenue were dismissed, instructing the Adjudicating Authority to issue a reasoned order within 60 days from the date of receipt of the judgment.