TaxTMI 
TaxTMI 
TaxTMI 
2023 (5) TMI 859
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....sioner rejecting the refund claim filed by the appellant. 2.1 Appellant has filed application for refund of Rs.17,70,534/- under Section 11B of the Central Excise Act, 1944 for the period 2001-02, 2004-05, 2005-06 and 2006-07 seeking refund of Cenvat credit on HSD/LDO/IDO used for generation of electricity. This refund claim was filed on 15.03.2019. 2.2 During the course of scrutiny, taking note of the fact 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 b....
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....instant case) subject to its manufacturing dutiable goods the same must be availed and utilized in view of the provisions contained in CCR, 2004) Third proviso to Rule 4(1) of CCR, 2004 during the relevant period provided that manufacturer or output service provider shall not take cenvat credit after six months from the date of issue of any of the documents specified in sub-rule 1 of Rule 9. ibid. It is pertinent here to note that when cenvat credit for the impugned period was availed on HSD & LDO the appellant could have availed (subject to admissibility) the cenvat of IDO. But it was their own decision that they had not availed the credit of Rs.17,70,534/- involved solely on IDO during the period 2005-06 and 2006-07. It is the appellant&#....
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....nd 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 being unconstitutional. It is incontrovertible that the refund claim filed by the ap....
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....arned counsel for the appellant was to produce ER-1s on which credit sought to be refunded has been claimed. Counsel admitted that they have never claimed the credit on any of the ER-1s but the claim has been filed on the basis of the balance sheets showing the amounts as Cenvat credit receivable. They have entered into various correspondences with the Revenue authorities seeking the authorities to allow this credit. One of such correspondences is as reproduced below:- 4.3 In the Form R [application of refund of excise duty (interest)] filed by the appellant seeking refund, following has been stated:- "b. Vide letter dated 20/02/2007, it had been submitted by us that, the LDO and IDO which had been utilized for generation of electricity,....
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....hat HSD/LDO had been used for generation of electricity. That various show cause notices were issued to us by denying the cenvat credit availed on HSD/LDO. Therefore, decision were taken by us that instead of using HSD/LDO we should use IDO, which is lower price over HSD/LDO. Therefore, letter dated 20/02/2007 were filed for availment of Cenvat Credit used for generation of electricity, but no response from your office. e. Industrial Diesel Oil (IDO) heavy fuel oil which is mainly used for heating, generating power and water/steam boilers in small industrial and hospitality applications. The main advantage of IDO is the lower price over diesel which comes under inclusion part 'input'. Thus, we have used IDO for generation of elec....
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....6 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 ....