TaxTMI 
TaxTMI 
2018 (7) TMI 246
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....Adjudicating authority passed two Adjudication Orders and rejected the refund claims. By a common Order in Appeal, the Commissioner (Appeals) dismissed both the appeals filed by the appellant. Hence, the appellant filed two separate appeals against the two Adjudication Orders. 3. Heard both sides and perused the appeal records. 4. The Learned Advocate appearing on behalf of the appellant submitted that they cleared bulk drug @ NIL rate of duty in terms of Notification No. 4/2006-CE dated 01.03.2006, by which the goods are exempted, subject to the condition that if the bulk drugs are used elsewhere, other than in the factory of production, the exemption will be allowed and they have to follow the procedure under Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 2001. It is submitted that after receipt of the returned goods on 04.09.2010, the appellant debited 10% of the value of the exempted goods as per instruction of the Central Excise Revenue Audit team and they have also filed refund claim as the amount was erroneously debited by them. The Learned Advocate submitted sequence of events and Case Laws. 5. The Learned D.R for....
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.... appellant sought permission to re-credit the amount. The Assistant Commissioner of the Central Excise vide letter dated 29.12.2010, directed the appellant to file refund claim. Accordingly, the appellant filed the refund claim on 20.04.2011. Section 11B of the Act 1944 provides that any person, claiming refund of any duty of excise and interest, if any, paid on such duty, may make an application for refund of such amount to the Assistant Commissioner of Central Excise, before expiry of one year from the relevant date. Section 11B(5)(B) (f) provides that the relevant date means the date of payment of duty. 9. In the present case, the appellant claimed the refund of the amount as debited from their RG 23A Part-I & Part-II Account as on 04.09.2010. Therefore, the appellant filed the refund claim within the stipulated period under the provisions of law. 10. Commissioner (Appeals) observed that the question of taking re-credit in the instant case arises when the returned goods are cleared after process or as such from the factory. I do not find any provision under the Central Excise Rules, 2002 for taking re-credit of the returned goods at the time of clearance after re-processing of....
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....nd that the appellants reversed the credit only on the insistence of Audit. Later, they realized that the advice given was wrong. Therefore, they informed the department of their intention to reverse the credit and even when the Department did not give permission for reversal, they re-credited the amount. We find that the appellants have relied on certain decisions, which hold that no permission is needed for re-credit in respect of wrong reversal. These decisions will prevail over the single member decision relied on by the learned DR. It is also to be borne in mind that it is not the case of the Revenue that the appellants are not entitled for the credit. In these circumstances, it would be very harsh to deny the credit. The Audit Officers also ought to have been very careful before tendering their advice, which was found to be erroneous. In these circumstances, we do not find any justification for demanding the amount of credit taken by the appellants. Hence, we allow the appeal with consequential relief." 12. In the case of Krishnav Engineering Limited Vs. CESTAT, 2016 (331)ELT 391 (Allahabad) the Hon'ble Allahabad High Court held as under: "5. Having heard the learned couns....
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....ersed the credit. In our view, it is only an account entry reversal and there is no out flow of funds from the side of the appellant which may result in filing an application under Section 11B of the Act for claiming refund of duty. Consequently, in our opinion, the provision of Section 11B of the Act is not applicable. 8. Considering the fact that it is only an account entry reversal, we have no hesitation in holding that the Cenvat credit taken by the appellant by intimating the department vide their letter dated 25th April, 2005 was in accordance with the procedure provided under Rule 9 of the Rules of 2004. 13. The Hon'ble Madras High Court in the case of ICMC Corporation Limited Vs. CESTAT- Chennai, 2014 (302) ELT 45 (Mad) held as under:- "13. We do not subscribe to the view expressed by the Revenue. Admittedly, the assessee originally availed the Cenvat credit on Service Tax for discharging its liability. However, for sound reasons, it reversed the credit. Strictly speaking, in this process, there is only an account entry reversal and factually there is no outflow of funds from the assessee to result in filing application under Section 11B of the Central Excise Act, 1944....