2023 (5) TMI 859

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....act that the appellant had filed refund claim after expiry of more than one year from the date of payment as stipulated under Section 11B of the Central Excise Act, show cause notice dated 10.05.2019 was issued to the appellant. The refund claim has been adjudicated rejecting the claim, by the Assistant Commissioner and the rejection has been upheld by the Commissioner (Appeals) by the impugned order. Aggrieved appellant has filed this appeal. 3.1 I have heard Shri Radheshyam Indani, Advocate for the appellant and Shri Xavier Mascarenhas, Superintendent, Authorised Representative for the Revenue. 4.1 For upholding the rejection, Commissioner (Appeals) has in the impugned order observed as follows:- "8.1 On going through the rival contentions it is seen that the department has not controverted the amount of cenvat credit of Rs 17,70,534/- not availed by the appellant which was later sought as refund, per-se. The department had issued a SCN dated 10.05.2019 proposing rejection of the claim solely on the grounds that the impugned claim had been filed after one year of the relevant period as envisaged under Section 118(2) of CEA, 1944. The lower authority later confirmed....

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....f [duty of excise and interest, if any, paid on such duty) in relation to which such refund is claimed was collected from, or paid by him and the incidence of such [duty and interest, if any, paid on such duty) had not been passed on by him to any other person. Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act 1991, such application shall be deemed to have been made under this sub- section as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub-section (2) substituted by that Act:] [Provided further that the limitation of (one year) shall not apply where any duty and interest, if any, paid on such duty] been paid under protest." Likewise, Section 118(5)(B) lays down "relevant date" which varies for different situation as envisaged under sub-clause (a) to (f) therein) Primarily, as has been made clear by the Hon'ble Supreme Court in the Mafatial Industries case, reported at, 1997 (89) EL.T. 247 (S.C.), every claim of refund is guided by the provisions of Section 118 except where the provisions have been stuck down as be....

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....of Kraft Paper, and without availing the exemption provided under the law Central Excise Duty had been paid by us on kraft paper. Therefore, we were requested that kindly allow the CENVAT CREDIT of Rs. 3314605.30 involved in the HSD/ LDO / IDO, which were used for generation of electricity. However, in spite of reminder latter dated 14/03/2008, not allowed any credit and there was no communication from the department. Hence, filing this refund claim, year wise cenvat credit involved in the said letter is as under: Sr.No. Year Cenvat Credit Involved in HSD Cenvat Credit involved in LDO Cenvat Credit involved in IDO Total Credit involved.   2001-02 558368.34 82028.66 0.00 640397.00   2004-05 0.00 315370 0.00 315370.00   2005-06 0.00 588301.00 1534480.00 2122781.00   2006-07 0.00 0.00 236054.00 236054.00   TOTAL 558368.34 985699.66 1770534.00 3314602.00 c. That we had manufactured Kraft Paper, that are goods classifiable under Chapter 48 of the First Schedule to the Central Excise Tariff Act, 1985 by using domestic and imported waste paper as ra....

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....O. Therefore, this Refund Claim is restricted to Cenvat Credit of IDO Rs. 1770534/- involved in the letter dated 20/02/2007, for the period from 01/08/2005 to 28/03/2006 & 03/04/2006 to 05/05/2006 which was claimed before the authority within time vide letter dated 20/02/2007 and reminder letter 14/03/2008. k. The substantial benefit of Cenvat credit available to us cannot be denied in the facts of the present matter. In view of the facts that the inputs IDO used for generation of electricity and electricity had been used in the manufacture of the dutiable final goods, on which central excise duty was paid by us. Therefore, we cannot be deprived of the benefit of Cenvat credit of the duty paid on the inputs. During the relevant period no time limit has been fixed for availment of credit. Further meaning of work viz immediately' has not been defined in cenvat credit rules anywhere. However, vide letter dated 20/02/2007 it was requested by us that to allowed the credit. l. We further submit that, either grant the refund claim in cash or adjust the same against the arrears/ liability if any." 4.4 To the specific query made at the time of arguments cou....