2023 (9) TMI 452 - AT - Central Excise

Appeal granted, rebate based on duty paid, excess rebate recovery barred without refund.

M/s Omax Autos Limited Versus Commissioner of Central Excise, Delhi-III

M/s Omax Autos Limited Versus Commissioner of Central Excise, Delhi-III - TMI Issues Involved:1. Rebate of duty paid without availing the available exemption.2. Recovery of alleged excess rebate and CENVAT credit refund.3. Applicability of Section 35B of the Central Excise Act, 1944.4. Payment of rebate in cash versus credit in the CENVAT account.5. Finality of the order sanctioning rebate and its implications.Summary:Rebate of Duty Paid Without Availing Exemption:The appellants, engaged in manufacturing household articles, paid duty at 10% and claimed a rebate under Rule 18 of the Central Excise Rules, 2002. The Department argued that the appellants should have availed the exemption under Notification No. 02/2011-CE, which capped the duty at 5%. The appellants contended that the rebate should be granted on the 'duty paid' rather than the 'duty payable,' citing several case laws supporting their stance.Recovery of Alleged Excess Rebate and CENVAT Credit Refund:The Department issued show-cause notices to recover the alleged excess rebate and CENVAT credit refund. The adjudicating authority upheld the show-cause notice regarding the rebate but allowed the refund of CENVAT credit. The appellants argued that the rebate order had attained finality and could not be challenged by the Department without being set aside by a higher authority.Applicability of Section 35B of the Central Excise Act, 1944:The Department raised a preliminary objection regarding the Tribunal's jurisdiction under Section 35B of the Central Excise Act, 1944. The appellants countered that the appeal was valid as it was against an order passed by the Commissioner of Central Excise.Payment of Rebate in Cash Versus Credit in the CENVAT Account:The appellants argued that rebate should be given in cash, especially with the advent of the GST regime, which rendered the CENVAT account obsolete. They relied on various circulars and case laws to support their claim.Finality of the Order Sanctioning Rebate:The appellants contended that the order sanctioning the rebate had attained finality and could not be contested by the Department through a show-cause notice under Section 11A of the Central Excise Act, 1944. The Tribunal agreed, noting that the Department had not refunded the excess duty paid, making the recovery of the alleged excess rebate redundant and a futile exercise.Conclusion:The Tribunal found that the appellants were eligible for the rebate of the 'duty paid' and not the 'duty payable.' The impugned order was set aside, and the appeal was allowed, emphasizing that the Department could not recover the alleged excess rebate without refunding the excess duty paid. The judgment was pronounced on 08/09/2023.