TaxTMI 
TaxTMI 
2011 (2) TMI 875
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....mmissioner, Jammu by his order dated 3.4.2009 had ordered appropriation of the said amount of Rs.13,13,990/- which was equal to the amount of cenvat credit availed in the month of April 2006 in terms of the provisions of Notification No.56/2002-CE dated14.11.2002 (as amended from time to time). 4. The respondents are engaged in the manufacture of Allopathic medicine Classifiable under heading 30042039, 30049069, 30049039, 30049067 and 30049099 of the first schedule to the Central Excise Tariff Act, 1985. The respondents having their factory situated in the State of Jammu and within the area specified under Notification No.56/2002-CE dated 14.11.2002 were availing the benefit of the said notification. They filed refund claims on 11.12.2006 for Rs.1,27,71,976/- on account of central excise duty paid through PLA for the month of November 2006. Pursuant to the report received by the Range officer in favour of the refund of the amount of Rs.1,27,71,976/-, the same was sanctioned by the said order dated 3.4.2009. However, while passing the said order and going through the records, the adjudicating authority found that the party working under exemption scheme provided under the ....
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....ubmitted that the notification has two provisions for appropriation of the amount because in case the party is on the part of the beneficiary thereof to either of the provisions or conditions of the said notification, the same empower the authority to make necessary adjustment in relation to the refundable amount as well as shortfall in the refund during subsequent months. Considering the same as the default in the case in hand related to the month of April, the necessary adjustment having been done in relation to the month of November, the Commissioner (Appeals) was not justified in observing that the adjudicating authority had not complied with the provisions of law while ordering appropriation of the said amount. Attention was also drawn to the Circular No.682/73/2002-CX, dated 19.12.2002 and in particular to clause 4 of the said notification while contending that the adjudicating authority had not committed any irregularity in exercise of its power while ordering appropriation of the said amount. 8. On the other hand, the Advocate appearing for the respondents drawing our attention to clause 2( c) of the notification submitted that the adjustments thereunder are permi....
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....ant Commissioner of Central Excise or Deputy Commissioner of Central Excise, as the case may be, after such verification, as may be deemed necessary, shall refund the amount of duty paid, other than the amount of duty paid by utilization of CENVAT credit under the CENVAT Credit Rules, 2002, during the month under consideration to the manufacturer by the 15th day of the next month. (c) If there is likely to be any delay in the verification, the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, shall refund the amount on provisional basis by the 15th day of the next month to the month under consideration, and thereafter may adjust the amount of refund by such amount as may be necessary in the subsequent refunds admissible to the manufacturer. 11. According to the above quoted provisions of the notification, the manufacturer seeking to avail the benefit of the scheme under the said notification is required to submit a statement of duty paid, other than by way of utilization of cenvat credit, by 7th of the month following the month in respect of which the duty has been paid. On receipt of such report from the ....
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....an be taken. It specifically provides that in case where the authority delays the verification of the claim for whatever reason it could be he is empowered to refund the amount on provisional basis by 15th day of the month following the month in respect of which the refund is to be ordered and thereafter to adjust the refund as may be necessary in the subsequent refund admissible to the manufacturer. The DR is justified in contending that the adjustment is permissible within reasonable period and even if the adjustment in relation to the month of April is made in relation to the month of November, it cannot be said that there is no such power to the authority. However, there is one restriction imposed upon the authority in this regard. And that is, such earlier refund should be on provisional basis. Once the refund is finally granted, by no stretch of imagination it can be said that it is on provisional basis. Where the refund is granted on provisional basis, the order of the decision should necessarily disclose the same. It could be apparent from the face of the order itself or could be revealed from the other contemporaneous records. In other words, it is not a matter of discreti....