2021 (3) TMI 885

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.... Act, 2017, in cash. 2.1 The submissions made by Ms. S. Vishnupriya, Learned Advocate appearing for the appellant, are as under: (i) The appellant filed an application for refund vide application dated 20.08.2018 in Annexure-67, FORM-R - Application for refund of Excise Duty; (ii) The above refund claim was made after the receipt of Final Order Nos. 41520 to 41521 of 2017 dated 08.08.2017 of the Division Bench of CESTAT, Chennai; (iii) The claim of the appellant for refund has never been under Section 11B of the Central Excise Act, 1944 or under Rule 5 of the CENVAT Credit Rules, 2004; (iv) The appellant, by mistake, filed its refund claim in FORM-R, but a simple application would have sufficed; ....

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.... Section 11B ibid. would not apply since no part of the Duty and interest was ever claimed as refund; (x) Clause (ec) of Section 11B was also not applicable since the refund did not arise as a consequence of CESTAT's Order; (xi) Section 11B (ec) was inserted only for the benefit of the appellant and could not be made applicable against the appellant; (xii) The unutilized credit was on account of pre-deposit which would amount to payment under protest, for which reason limitation under Section 11B is not applicable; (xiii) The unutilized credit was only frozen, but not reversed, which was also under protest, etc. 2.2 Learned Advocate for the appellant also relies on the following decisions/judicia....

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....s Jhajharia, Learned Authorized Representative appearing for the Revenue, relied on the reasons given in the impugned order. He would also rely on the decision of the Constitutional Bench of the Hon'ble Supreme Court in the case of M/s. Mafatlal Industries Ltd. v. Union of India reported in 1997 (89) E.L.T. 247 (S.C.). He also relied on the decision of the Hon'ble jurisdictional High Court in the case of Commissioner of Central Excise, Coimbatore v. M/s. GTN Engineering (I) Ltd. reported in 2012 (281) E.L.T. 185 (Mad.). 4. In her rejoinder, Learned Advocate for the appellant would submit that the decision of the Hon'ble Madras High Court in the case of M/s. GTN Engineering (I) Ltd. (supra) was rendered in the context of Rule 5 of t....

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....n have no play and cannot be applied; such deemed MODVAT Credit is not equal to Duty paid in the peculiar facts and circumstances of the case. (iv) M/s. Global Energy Food Industries v. C.C.E., Ahmedabad [2010 (262) E.L.T. 627 (Tri. - Ahmd.)]: The refund claim was under Rule 5 of the CENVAT Credit Rules, 2004. (v) C.C.E., Nasik v. M/s. Nasik SSK Ltd. [2017 (4) T.M.I. 891 - CESTAT, Mumbai]: The issue here related to the claim of refund of an amount equal to 5% / 6% paid/reversed by the appellant in terms of Rule 6 (3) of the CENVAT Credit Rules, 2004, to which the Learned Mumbai Bench had held that the limitation provided under Section 11B is not applicable. (vi) M/s. Natural Slate and Sandstone Exports (P) Ltd. an....

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....e Act, the recovery of Duty on the ground of unjust enrichment. (xii) C.C.E., Pondicherry v. Church's Auxiliary for Social Action (CASA) & ors. [2009 (2) T.M.I. 437 - CESTAT, Chennai]: The case directly relates to claim of refund of Excise Duty in terms of Notification No. 32/2005-C.E. as amended by Notification No. 35/2005. (xiii) M/s. Sapa Extrustion Pvt. Ltd. v. Commr. of Central Tax, Tirupati [2019 (3) T.M.I. 1176 - CESTAT, Hyderabad]: Also on the point of refund of excess Duty paid vis-à-vis unjust enrichment. 7.2 The above orders/decisions clearly are all on refund either under Section 11B of the Central Excise Act, 1944 or under Rule 5 of the CENVAT Credit Rules, 2004, which, as vehemently contended ....