TaxTMI 
TaxTMI 
2022 (12) TMI 54
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....d by the department on 21.12.1998. The claim was in regard to goods exported by them by four AR4s. In respect of three AR4s, amounting to Rs.15,300/- they claimed rebate under Rule 12(1)(a). In respect of one AR4 namely 1/98-99 dated 30.11.1998, they claimed cash refund of Rs.2,97,007/- under Ruel 57F(13) of Central Excise Rules, 1944. The claim of Rs.15,300/- was duly passed and the rebate for equivalent amount was sanctioned to them. However, in respect of other refund claim (Rs.2,97,007/-), the department was of the opinion that as the appellants were utilizing credit for payment of duty on goods cleared for home consumption, it would be possible for them to utilize the credit for payment of duty on clearances for home consumption. Accordingly, letter dated 24.3.1999 was issued by the department returning the refund claim. The appellants made a representation vide letter dated 1.4.1999 and submitted details of the claim put forward by them and contended that they are eligible for cash refund. After granting personal hearing on 9.4.1999, Order in Original No. 108/99 dated 29.4.199 was passed holding that appellant has already utilized the credit for payment of duty and that there....
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....m (Rs.) (1) (2) (3) (4) 1. 1/98-99/28.07.98 12(1)(9) 11,400/- 2. 2/98-99/28.07.98 12(1)(9) 1,200/- 3. 3/98-99/30.11.98 12(1)(9) 2,700/- 4. 1/98-99/30.11.98 57F(13) 2,97,007/- 7. It is understood that the said Show Cause Notice was not taken up for immediate adjudication and the appellant had sent several letters requesting for processing of the refund claim. Pursuant to a letter dated 19.12.2014 requesting to process and pass an order in respect of the refund claim made by them, a further Show Cause Notice dated 10.3.2015 was issued to the appellant alleging that the appellant has been in silence for over 15 years and has suddenly requested for refund without furnishing any order / document warranting refund. 8. The appellant filed a reply dated 4.4.2015 to the said Show Cause Notice. It was stated by the appellant that they were continuously corresponding and asking for personal hearing after remand of the matter and issuance of Show Cause Notice dated 9.2.2000. They also mentioned about the order passed by the Commissioner (Appeals). The said Show Cause Notice dated 10.3.2015 was taken up for adjudication and Order in Original No. 204/2015 dated 6.8.2015 wa....
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....not in a position utilize the credit for the payment of duty on the goods and hence they are eligible for refund. The Rule 57F(13) of CER, 1944, clearly states that the credit of specified duty in respect of the inputs so used shall be allowed to be utilized by the manufacturer towards payment of duty of excise on any final products cleared for home consumption or for export on payment of duty and where for any reason such adjustment is not possible, the manufacturer shall be allowed refund. In the instant case, it could be noticed that the appellant is utilizing the credit for payment of duty on the goods cleared for export and as well as for home clearances and hence the appellant contention that they could not utilize the credit and were eligible for refund is not sustainable under law." (Emphasis supplied) 10. The present appeal is filed against the said order passed by the Commissioner (Appeals) who upheld the view taken by the original authority that the appellant would be able to use the unutilized credit and therefore cash refund need not be sanctioned. 11. The learned counsel Shri N. Viswanathan appeared and argued for the appellant. He explained that the main ground fo....
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....on of the Tribunal in the case of Bishen Dye Printing & Weaving Mills Vs. CCE, Thane - I reported in 2008 (227) ELT 608 (Tri. Mum.) to submit that refund cannot be denied stating that the accumulated credit can be utilized for payment of duty of goods cleared for home consumption. 14. The learned counsel explained that the appellant had sufficient credit in their MODVAT account. They were clearing the goods for home consumption on payment of duty and also exported goods under bond as well as on payment of duty. They availed the MODVAT credit under erstwhile Central Excise Rules and for the purpose of easily maintaining the account, they had kept two registers separately for export and domestic clearances. Thus, they had separate RG23A Part II registers, one for accounting MODVAT credit of export and the other for domestic clearances. The entire confusion arose as the appellant had made some wrong debit entry in their export register instead of debiting in their domestic register. On perusal of RG23A Part II (Export Register), it would show that as on 8.1.1999, the appellant had a credit balance of Rs.7,87,065/-. Out of this, the appellant made four wrong debit entries to the tune ....
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....fund claim and pass a speaking order. Interestingly, thereupon Order in Original No. 108/199 was passed rejecting the refund holding that there is no balance to sanction refund. As per the appeal preferred by the appellant, the matter was remanded to the original authority with a direction to issue Show Cause Notice and re-examine the claim. A Show Cause Notice dated 9.2.2000 was then issued. It is seen that again a Show Cause Notice dated 10.3.2015 also was issued. I fail to understand why repeated Show Cause Notices have been issued even though it is a remand by the first appellate authority. The department then opted to adjudicate the second Show Cause Notice and rejected the claim stating that there is delay on the part of the appellant to press for processing of the claim. How can the appellant be said to be at fault when the matter has been remanded by Commissioner (Appeals) directing to re-examine the matter after issuing Show Cause Notice. 20. Be that as it may, pursuant to the direction of the Hon'ble High Court, the Show Cause Notice dated 9.2.2000 was taken up for adjudication. The refund claim was rejected again observing that during the material period, the appell....