2021 (12) TMI 525 - AT - Central Excise

Tribunal denies appellant's refund claim under Notification 39/01-CE, citing failure to appeal prior rejection.

The Tribunal dismissed the appeals, ruling that the appellant was not entitled to a refund of the differential basic excise duty under Notification ... Refund for the 100% payment of duty made under N/N. 39/01-CE from PLA or to the extent of 75% in terms of amended N/N. 16/08-CE and 36/08-CE - HELD THAT:- The appellant have not filed any appeal against the rejection of refund of differential basic excise duty consequently the Learned Commissioner (Appeals) has not given any finding. The appellant have filed the appeal before Commissioner (Appeals) exclusively in respect of Education Cess and Secondary Higher Education Cess which has been allowed, therefore, there is nothing left in the impugned order to challenge before this Tribunal. Hence the appeal is not maintainable on this ground itself. The Hon’ble Supreme Court in the case of UNION OF INDIA & ANOTHER ETC. ETC. VERSUS M/S V.V.F LIMITED & ANOTHER ETC. ETC. [2020 (4) TMI 669 - SUPREME COURT] held that the amemdment Notification whereby the refund was restricted to 75% is valid and legal, therefore, the appellant is entitled for the refund in respect of Basic Excise Duty only to the extent of percentage prescribed therein and not for the full amount of duty paid from PLA. The appellant is not entitled for the refund of differential basic excise duty - Appeal dismissed. Issues Involved:Whether the appellant is entitled to a refund for 100% payment of duty under Notification 39/01-CE from PLA or only to the extent of 75% as per amended Notifications No. 16/08-CE and 36/08-CE.Analysis:The judgment by the Appellate Tribunal CESTAT Ahmedabad dealt with the issue of refund entitlement for duty payment under specific notifications. The appellant sought a refund for the full amount of duty paid under Notification 39/01-CE from PLA, while the Revenue argued that the refund was restricted to 75% as per amended Notifications No. 16/08-CE and 36/08-CE. The Tribunal considered the submissions made by both parties and examined the records.On a preliminary objection raised by the Revenue, it was noted that the appellant had not filed an appeal against the rejection of refund of differential basic excise duty. The Commissioner (Appeals) had not given any finding on this issue as the appeal was solely related to Education Cess and Secondary Higher Education Cess. Therefore, the Tribunal found that there was no basis to challenge the rejection of refund before them. Additionally, the Tribunal referred to a judgment by the Hon'ble Supreme Court in the case of VVF Limited, which upheld the validity of the amendment restricting the refund to 75%. The Tribunal cited relevant portions of the Supreme Court judgment to support its decision.Based on the Supreme Court's judgment and the lack of appeal on the specific issue of refund of basic excise duty, the Tribunal concluded that the appellant was not entitled to the refund of the differential basic excise duty. Consequently, the appeals were dismissed. The Tribunal emphasized that the issue had been settled against the assessee in light of the Supreme Court's decision, leading to the denial of the refund claim.In summary, the judgment clarified the refund entitlement under specific notifications, highlighted the importance of filing appeals on relevant issues, and relied on the Supreme Court's decision to resolve the matter in favor of the Revenue, ultimately dismissing the appeals.