TaxTMI 
TaxTMI 
2023 (9) TMI 1087
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....e department. 2. The respondent is engaged in the manufacture of Henna Powder and Henna Paste. It believed that these two products manufactured by it would fall under Chapter 14 of the Central Excise Tariff Act, 1985 [the Excise Tariff Act] attracting nil rate of duty. The department, however, believed that these two products would fall under Chapter 33 of the Excise Tariff Act, attracting excise duty at the rate of 12%. The respondent paid duty of excise for the period from January 2012 to February 2013 under protest. 3. Subsequently, the Notification was issued under section 11C of the Excise Act directing that the whole of the duty of excise payable under section 3 of the Excise Act on Henna Powder and Henna Paste falling under Chapter 33 of the First Schedule to the Excise Tariff Act would not be levied during period commencing 01.01.2007 to 01.03.2013. As the respondent had claimed refund of the excise duty, it would be appropriate to reproduce this Notification which is as follows: "Notification: 11/2017-C.E. (N.T.) Dated April 24, 2017 Heena Powder and Paste - Exemption under Section 11C for period from 1-1-2007 to 1-3-2013 Whereas the Central Government is sa....
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....Rs. 1,45,92,582/-. xxxxxxxxxx 9. Whereas, out of the refund claim of Rs. 1,45,92,582/-, the assessee has paid Rs. 1,15,84,142/- (Duty- Rs. 1,12,01,685/- + Cess-Rs.3,82,457/-) through GAR-7 challans during the said period and remaining Rs. 30,08,440/- paid through Cenvat account. 10. Whereas, it appears that the assessee is only eligible for refund of central excise duty amounting to Rs. 1,12,01,685/- paid through PLA and remaining amount i.e Rs. 33,90,897/- (Rs. 30,08,440 paid through CENVAT+Rs. 3,82,457/- Cess paid in cash) is not liable to be refunded to them. Because after issuance of Notification No. 11/2017-CE(NT) dated 24.04.2017, the assessee got exemption of paying central excise duty on Henna Powder and Paste from 01.01.2007 to 01.03.2013, means no duty is payable for the period on Henna Powder and Paste and when duty is not there, they were not eligible to avail cenvat credit also during the period on Henna Powder and Paste. 11. Now, therefore, M/s. Prem Mehandi Center, Khasra No. 678/2, Desuri Road, Vill- Vopari, Marwar Junction, Distt-Pali is hereby called upon to show cause and explain to the Assistant Commissioner, Central Goods & Service Tax Division-D, havin....
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....ice as to why the refund claim of Rs. 59,95,869/- out of Rs. 1,49,10,667/- filed by them should not be rejected for the reasons stated herein above." (emphasis supplied) 7. Thereafter, an Addendum dated 20.06.2018 to the show cause notice dated 09.03.2018 was issued by the department. The relevant portion of this Addendum, which is the subject matter of Excise Appeal No. 50419 of 2019, is reproduced below: "3. On the basis of first proviso to the Section 11C (2) of the Central Excise Act, 1944 any refund rising out of Section 11 (C) (1) of the Central Excise Act, 1944 shall be filled within six months from the date of such Notification in the form refer in the sub-section 1 of the Section 11B of the Central Excise Act, 1944. Therefore, the specific provision as contained in proviso to Section 11C(2) of the Central Excise Act, 1944 has overriding effect on time limit of one year provided in sub-section 1 of the Section 11B of the Central Excise Act, 1944. Therefore, where refund has been arising out of exemption under Section 11C of the Central Excise Act, 1944, the refund has to be filed within six months from the date of such Notification. In this case, the notificatio....
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....cation issued under Section 11C of the CEA, 1944. I find that every refund claim filed under Central Excise Laws is governed by the provisions of Section 11B of the Central Excise Act, 1944. xxxxxxxxx I find that the issue regarding levy of central excise duty on Heena powder/Heena paste was sub-judice and the appeal of appellant was pending before the Tribunal. The Hon'ble Delhi Tribunal vide FINAL ORDER NO. A/54095/2017-EX[DB] dated 31.05.2017 has allowed the appeal of the appellant by extending the benefit of retrospective exemption notification issued under Section 11C of the CEA, 1994. I find that since the matter pertaining to retrospective exemption notification was sub-judice, the provisions contained in explanation (ec) to section 11B of the CEA, 1944 would prevail and hence, the refund claim filed by the appellant on 15.12.2017 is well within the time limit, of one year as prescribed under section 11B of the CEA, 1944. xxxxxxxxxx 5.4.3 I find that the adjudicating authority has been placed erroneous reliance on the decision given in the case of M/s Redington India Ltd. Vs Commissioner of Customs, Chennai reported in 2011-TIOL-863-CESTAT-MAD]. On other hand ....
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....laced reliance upon the decisions of the Tribunal in Wipro Information Technology vs. Commr. of C. Ex., Bangalore [1999 (107) E.L.T. 467 (Tribunal)] and JMC Projects (India) Ltd. vs. Commr. of Service Tax, Ahmedabad [2014 (35) S.T.R. 577 (Tri.-Ahmd.)]; (ii) The time limit of six months to file the refund claim from the date of issuance of the exemption notification would not be applicable, as every refund claim filed under the Excise Act is governed by the time limit provided under section 11 B; (iii) Where duty of excise becomes refundable as a consequence of a judgment, the time limit of one year prescribed under clause (ec) of Explanation (B) of section 11B would be applicable. In the present case, the matter pertaining to retrospective exemption Notification was pending before the Tribunal; (iv) Non-mentioning of the Final Order in the refund claim cannot be made a reason to apply the time limit of six months contemplated under section 11C; (v) In any view of the matter, if there is a contradiction in the time limit specified in section 11C and section 11B, the time limit contemplated under section 11B would be applicable; and (vi) To support the contention of th....
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....ding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal of any Court in any other provision of this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section (2). xxxxxxxxxxx Explanation.-For the purposes of this section,- xxxxxxxxxxx (A) "refund" includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (B) "relevant date" means,- xxxxxxxxxxx (ec) in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, the date of such judgment, decree, order or direction; (emphasis supplied) 16. Section 11C deals with a situation where duty of excise not levied or short-levied as a result of general practice is not to be recovered and it is as follows: Section 11C. Power not to recover duty of excise not levied or short-levied as a result of general practice.- (1) Notwithstanding anything contained in this Act, if the Central Governmen....
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....to be paid. Sub-section (2) of section 11C provides that where any Notification under sub-section (1) in respect of any goods has been issued, the whole of the duty of excise paid on such good which would not have been paid if the said Notification had been inforce, shall be dealt with in accordance with the provisions of sub-section (2) of section 11B. The proviso, however, stipulates that the person claiming the refund of such duty should make an application in the form referred to in sub-section (1) of section 11B before the expiry of six months from the date of issue of the said Notification. 20. In terms of the provisions of section 11C (1), the Notification was issued by the Central Government and it is pursuant to the said Notification that the respondent claimed refund of central excise duty paid on Henna Powder and Henna Paste during the period 01.04.2011 to 31.03.2013. The proviso to sub-section (2) of section 11C provides that the person claiming refund has to make an application in the form referred to in sub-section (1) of section 11B before the expiry of six months from the date of issue of the said Notification. 21. Sub-section (1) of section 11B provides that....
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....before the Tribunal and it is only on 31.05.2017 that the appeal was allowed extending the benefit of the Notification issued under section 11C. Thus, according to the Commissioner (Appeals), Explanation (B)(ec) to section 11B would come to the aid of the respondent and since the refund claim was filed on 15.12.2017 within a period of one year contemplated under section 11B of the Excise Act, it would be maintainable. 25. Learned authorized representative appearing for the department submitted that not only was the application required to be filed within six months from the date of issue of the Notification, but even otherwise the refund claimed filed by the respondent was as a consequence of the issuance of the Notification issued by the Central Government and not because duty became refundable as a consequence of a judgment, decree, order or direction of the Appellate Authority or Appellate Tribunal or any Court. 26. Learned counsel for the respondent supported the view expressed by the Commissioner (Appeals) and submitted that in view of the aforesaid decision of the Tribunal in Hyderabad Power Installations, the Commissioner (Appeals) committed no error in holding that t....
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....unal and in any case, the respondent could not have claimed benefit of the said decision for filing the refund claim because this decision does not decide the issue on merits but merely refers to the Notification for granting relief. The respondent had correctly filed the refund application as a consequence of issuance of the Notification and the said application was required to be filed within six months from the date of the issue of the Notification. Explanation (B)(ec) of section 11B cannot, therefore, come to the aid of the respondent. The Commissioner (Appeals) clearly committed an error in holding that because of Explanation (B)(ec) to section 11B, the respondent could file the application within a period of one year. 31. Learned counsel for the respondent also submitted that two Addendums issued to the two show cause notices contain substantial allegations that were not even part of the show cause notices and, therefore, should be ignored and if this be so, the contention of the department that the refund application should have been filed within six months from the date of issue of the Notification would not sustain since this was not even an allegation in the show cause n....
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....ty. By addendum, dated 7-3-1985 the department consciously gave up invocation of Rules 9, 49, 52A, 53 and 173F of the Central Excise Rules including the provisions of Rule 173Q. Initially demand was also raised to Rs. 7,90,757.04. This amended show cause notice raised fresh ground by which it was stated that the appellants had been manufacturing computer peripheral devices falling under Tariff Item 33DD and had supplied the main peripherals as add-ons to the computer systems manufactured and cleared by the appellants without including the value of these peripherals in the assessable value of computer and without paying relevant central excise duty thereon. From the terms of both the show cause notices it is clear that the department was fully aware of the fact of appellants clearing peripherals for the computer. The addendum to the show cause notice has given up invocation of various rules including the rule pertaining to imposition of penalty. Each show cause notice should comprise of one set of facts leading to the controversy about one such clearance and demand made therein. By addendum, the department had chosen to give up invocation of the provisions of various rules, thu....
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....ion Scheme deal only with the Works Contract Service under Section 65(105)(zzzza). There was thus no doubt in the authority issuing show cause notice dated 22-10-2008 and its corrigendum dated 29-9-2009 that the classification of the services being dealt was 'Works Contract Services' with effect from 1-7-2006. This fact was confirmed by C.B.E. & C. by issuing circular dated 24-8-2010. Therefore, demanding a duty of Rs. 20,53,91.319 on 'Commercial or Industrial Construction Services'/'Construction of Complex Services' and denying the benefit of Notification No. 1/2006-S.T., dated 1-3-2006 is totally a new and different ground than what was being taken in the original show cause notice dated 22-10-2008, where classification of the service provided was not doubted at all. The judgments relied upon by the Revenue that the changes proposed were only mathematical corrections or facts available at the time of issue of show cause notice dated 22-10-2008, are thus not applicable to the facts of the present proceedings. The Addendum dated 29-9-2009 and its further corrigendum dated 17-5-2010, therefore, fails as the same has changed the entire basis of the first show cause notice dated 22-10....