TaxTMI 
TaxTMI 
2017 (10) TMI 839
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.... withdrawal of the duty by Notification No.31/2004 CE dated 09.07.2004, they filed refund claim for Rs. 10,47,446/- towards unutilized credit of Additional Excise Duty (T & TA) lying in balance as on 31.03.2008 and carried forward till 31.03.2007. The Office of the Assistant Commissioner of Central Excise/ Adjudicating Authority herein by its Order-in-Original dated 21.01.2008 rejected the refund claim made by the respondent. Aggrieved by the same, the respondent herein filed an Appeal before the Commissioner of Central Excise (Appeals), Salem. The Commissioner also rejected the Appeal vide order dated 04.12.2008, against which, the respondent filed an appeal before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), South Zonal Bench, Chennai. However, CESTAT passed final order dated 15.02.2016, thereby setting aside the orders of the lower authorities and allowed the Appeal. Aggrieved over the same, the present Appeal is filed by the Department. 3. Despite notice being ordered and served and proof also filed for the respondent, none appeared on behalf of the respondent. 4. Heard the learned counsel for the appellant and perused the materials available on record....
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....aim and held not admissible under Section 11(B) of the Central Excise and Sales Tax Act, 1944. Aggrieved by the same, the respondent filed an Appeal before the Commissioner of Central Excise (Appeals), Salem. The Commissioner by order dated 04.12.2008 concurred with the findings of the Assistant Commissioner of Central Excise/ Adjudicating Authority, dismissed the Appeal. Aggrieved over the same, the respondent filed Appeal before the CESTAT and the Customs, Excise and Service Tax Appellate Authority has allowed the Appeal and reversed the findings of the Assistant Commissioner of Central Excise and the findings of the Commissioner of Central Excise (Appeals), vide order dated 15.02.2016, which is impugned herein. Against which, the present Appeal is filed by the Department. 8. The undisputed factual possession being that the respondent Textiles were availing CENVAT Credit facility in respect of input duty and were having the balance of Rs. 10,47,446/- as on 31.03.2005 lying unutilized in the head of Account AED (T & TA). What is important is that the levy of Additional Excise Duty was abolished vide Notification No.31/2004 -CE dated 09.07.2004. However, the balance credit has b....
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....n accordance with the rules made, or any notification issued, under this Act; (d) duty of excise paid by the manufacturer, if he had not passed on the incidence of such duty to any other person; (e) the duty of excise borne by the buyer, if he had not passed on the incidence of such duty to any other person; (f) the duty of excise borne by any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify : Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government the incidence of duty has not been passed on by the persons concerned to any other person. (3) Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any Court or in any other provision of this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section (2). (4) Every notification under clause (f) of the first proviso to sub-section (2) shall be laid before each House of Parliament, if it is sittin....
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.... a case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by notification in the Official Gazette in full discharge of his liability for the duty leviable on his production of certain goods, if after the manufacturer has made the payment on the basis of such rate for any period but before the expiry of that period such rate is reduced, the date of such reduction; [ (e) in the case of a person, other than the manufacturer, the date of purchase of the goods by such person;] [ (ea) in the case of goods which are exempt from payment of duty by a special order issued under sub-section (2) of section 5A, the date of issue of such order; ] [ (eb) in case where duty of excise is paid provisionally under this Act or the rules made thereunder, the sub-section (2) of section 5A, the date of issue of such order; ] (f) in any other case, the date of payment of duty ." 10. It is clear from the above provision that any reason for matter of fact, the claim has to be made before the expiry of one year from the payment of duty. But, it could be seen from the claim of refund of duty file....
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.... the Provisional Collection of Taxes Act, 1931, the force of law, shall be utilised for payment of service tax on any output service. Explanation: For the purposes of this rule, the words output service which is exported means the output taxable services exported in accordance with The Export of Service Rules, 2005. 13. The respondent had cleared their final product for export under 'letter of undertaking' as well as 'on payment of duty' and had claimed rebate and the same was sanctioned and paid to them subsequently. The export award admittedly made on payment. The object of CENVAT Credit Claim is to avoid the cascading effect of input duty on the cost of final products and therefore, once duty on the final product is fully exempted or abolished, the question of extending the benefit in the form of credit or payment of such credit in cash does not arise. It is well settled principle that what cannot be done directly should not be allowed to be done indirectly. Refund of such unutilised credit of duty, which has been abolished long back, in cash would make the assessee enrich himself and would defeat the very basic concept of CENVAT Credit Scheme. The ab....