TaxTMI 
TaxTMI 
2021 (2) TMI 1044
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....ely consumed and had also wrongly availed Input Tax Credit, MODVAT Credit under the provisions of the Central Excise Rules, 1944 as it stood during the period in dispute. Under these circumstances, the officers of the second respondent/Commissioner of GST & Central Excise (Formerly Commissioner of Central Excise) visited the petitioner's premises and investigated the affairs of the petitioner on 08.08.2001. Thereafter, statements were recorded from the office of the petitioner on 24.09.2001. 4. During the course of investigation, the petitioner debited a total amount of Rs. 28,00,923/- from their CENVAT account on 11.01.2002 and on 20.02.2002 towards paper core and bleach liquor consumption (Rs. 7,95,239/- towards paper core captively consumed and Rs. 19,91,426/- towards bleach liquor capitvely consumed and a differential duty is Rs. 14,258/-). The petitioner debited amounts towards duty liability for the period from July 1996 to June 2001. 5. Thereafter, a Show Cause Notice was issued to the petitioner by the office of the second respondent/Commissioner of GST & Centrl Excise on 02.12.2002. The said Show Cause Notice called upon the petitioner to show cause as to why; ....
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.... alone. 8. Under these circumstances, the petitioner preferred an application before the first respondent/Settlement Commission on 22.08.2003 under Chapter V of the Central Excise Act, 1944 to settle the case. Before the first respondent/Settlement Commission, the petitioner admitted a tax liability of Rs. 24,13,266/- and prayed for refund of Rs. 3,87,657/- (Rs. 28,00,923 - 24,13,266). However, by an order dated 29.12.2003, the first respondent/Settlement Commission dismissed the said application of the petitioner on the ground that the petitioner had failed to truly and fully disclose its tax liability and therefore the application was liable to be rejected. 9. Aggrieved by the same, the petitioner filed W.P.No.13736 of 2004 which came to be disposed by an order dated 02.08.2017. While setting aside the order 29.12.2003 of the first respondent/Settlement Commission, the Court also observed that as far as refund is concerned, it is upto the first respondent/Settlement Commission to consider whether to grant of such refund or not. However, that could not have been a ground to come to a conclusion that there was no full and true disclosure of duty liability by the petitioner. ....
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.... duty cannot be again sought for payment of another duty demand or adjusted towards another liability as claimed by the applicant and also there was no provision in the Central Excise Act, 1944 to do so. If at all any amount which was paid in excess can be claimed only as refund under the provisions of Section 11B of the Central Excise Act, 1944 from the relevant date under Section 11(B)(5)(f) of CEA, 1944 as it existed during the material period for any excess payment made otherwise, the claim would be hit by time bar. The relevant date in the instant case is 11.01.2002, being the date of duty paid vide their Cenvat credit account, the applicant ought to have filed the refund claim on or before 11.01.2003. Case records also reveal that the applicant has not filed any refund claim on the excess amount paid on or before 11.01.2003. It is also pertinent to note that the Settlement Applicatin was filed on 26.08.2003. 4.7 The Bench has also taken note of the fact that the applicant during the course of hearing held on 29.10.2003 agreed to pay Rs. 9,36,279/- on account of admitted wrong availment of cenvat credit in addition to Rs. 28 Lakhs already paid. Thus there is no disput....
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....sumed paper cone and bleach liquor on which the petitioner was liable to pay duty as the final product was exempted in the hands of the petitioner. 17. This amount was paid for the period commencing from July 1996 to June 2001. After the amount was paid by the petitioner, the office of the second respondent issued a Show Cause Notice dated 02.12.2002 to the petitioner and called upon the petitioner to pay a cumulative amount of Rs. 25,62,778/. 18. The amounts paid by the petitioner on the two dates are nothing but a deposit and therefore were liable to be adjusted or refunded towards tax liability alone. 19. The demand that was proposed in the Show Cause Notice was towards the above two issues relating to non-payment of excise duty on the captively consumed paper cone and bleach liquor was confined to Rs. 14,76,987/- (Rs. 4,27,643 + Rs. 10,49,344) and a sum of Rs. 10,85,791/- towards wrong development of CENVAT credit as the petitioner was engaged in the manufacture of exempted goods. 20. The above demand was confined for the period commencing from November 1997 up to June 2001 as period prior to that was beyond the period of limitation prescribed under Section 11A read....
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....ent Settlement Commission that the petitioner was required to file a refund claim within one year from 11.01.2002, i.e on or before 11.01.2003, cannot be countenanced. The amount that was paid by the petitioner was otherwise liable to be adjusted or refunded subject to outcome of the Show Cause Notice dated 02.12.2002. The petitioner opted to settle the case before the first respondent Settlement Commission by offering an amount of Rs. 24,13,268/- in full and final settlement of its tax liability under the case initiated by the second respondent. 26. Under the circumstances, the amount that was paid by the petitioner in excess of the amounts due for the period covered by the Show Cause Notice towards captive consumption of paper cone and bleach liquor was to be adjusted towards the tax liability towards input tax credit wrongly availed by the petitioner and balance if any was liable to be refunded to the petitioner. 27. Though the petitioner had voluntarily paid the aforesaid amount during the course of investigation, in absence of the appropriation of the excess amount towards any other tax/duty liability of the petitioner, it was to be refunded back from the date of the imp....