TaxTMI 
TaxTMI 
2023 (9) TMI 1371
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....ocated in Export Promotion Industrial Parks (EPIP) in the State of Assam. The exemption was available to new industrial units which commenced its commercial production on or after 24.12.1997. In terms of the notification, the exemption was given effect to by refunding the entire amount of excise duty paid by an assessee using its account current (PLA). b. May - June 2001 The Appellants set up manufacturing plants at EPIP Amingaon, Guwahati and started their commercial production. c. May 2001 to 22.12.2002 The entire excise duty paid by the Appellants during this period was paid using account current (PLA). The Appellants took refund of such excise duty paid through PLA which was also allowed by the proper officer as the same was in compliance of the notification. The CENVAT credit availed by the Appellants on inputs and capital goods during such period kept on accumulating. d. 23.12.2002 NN-61/2002-CE was brought into effect amending NN-32/99-CE. By this amendment, a manufacturer was only allowed refund of excise duty paid through PLA after utilizing the entire amount of CENVAT credit....
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.... be payable. For Ozone Ayurvedics, the authority passed order bearing C No. V (15)08/SPL/ACG/03/6824 directing the Appellant to pay Rs. 59,17,101/- being amount refunded in excess during the period upto 22.12.2002, within a period of 30 days from 14.05.2003, and in the event of failure, interest @15% p.a. shall be payable. i. 10.06.2003 to 30.07.2003 The Appellants filed a representation before the Ld. Deputy Commissioner requesting for a re assessment. However, the said representation was not considered. Being aggrieved, the Appellants filed writ petitions being WP(C) No. 4401/2003 and WP(C) No. 4400/2003 before the Hon'ble Gauhati High Court. Vide order dated 30.07.2003 the department was directed to consider the representation filed by the Appellants and pass appropriate orders which shall only be implemented with leave of the Hon'ble High Court. j. 03.09.2003 - 05.09.2003 Consequent to the order, the Appellants were heard personally, and Ld. Deputy Commissioner held that its previous orders dated 02.06.2023 and 03.06.2023 passed against the Appellants were legitimate and proper and do n....
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.... the payment of duty for subsequent months. Starting from 23.12.2002, the Appellants utilized CENVAT credit for the payment of duty and on the continuous utilization by the Appellant, the balance in the CENVAT account became "Nil" in June 2003. 3.1 Therefore, as soon as the NN-32/99-CE was amended on 22.12.2002, the Appellants very obediently followed the same and utilized the accumulated CENVAT credit for the payment of duty. Such was the impact of utilization of the CENVAT credit that no refund was claimed/sanctioned to the appellants during the months of February 2003 to May 2003 and in the month of June 2003, duty was paid from PLA and refund was claimed only after completely exhausting the CENVAT credit balance. It is submitted that upto the month of May 2003 (when NN-61/02 was given retrospective effect), the appellants had fully utilized the accumulated CENVAT credit. 3.2 He further submits that because of such utilization of CENVAT credit during the period from 23.12.2002 to May 2003, the refunds in these subsequent months i.e., from 23.12.2002 to May 2003 were reduced to the extent of accumulated balance of input CENVAT credit as on 22.12.2002. It i....
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..... 3.6 Further, in a catena of judicial precedents it has been repeatedly held that demand of duty cannot be confirmed against the assessee if in the totality of the facts and circumstances of the case, no actual loss has been caused to the revenue. In this regard, reliance is placed on following cases holding the said proposition: • Lili Foam Industries (P) Ltd vs. Collector of C. Ex, 1990 (46) ELT 462 (Tribunal), M/s Hindalco Industries Limited vs. Commissioner of Central Excise, Bhubaneswar-II, 2023 (5) TMI 720 - CESTAT KOLKATA , • Fedders Lloyd Corpn. Ltd vs. Collector of Central Excise, New Delhi, 1997 (78) ELT 207 (Tribunal) ,HMT Ltd vs. Commr. of Cus. & C. Ex., Hyderabad, 2001 (136) ELT 850 (Tri-Chennai). 3.7 He further submits that in the present case as well, the purpose for which the amendment in NN-32/99-CE by NN-61/02-CE was brought into effect was never frustrated by the Appellants and no excess benefit was availed by them upto the introduction of the Finance Act, 2003. This is because if duty payment and consequent refund starting from May 2001 till May/ June 2003 are taken into consideration together it comes equal of the total du....
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....ants regarding complete utilization of the accumulated CENVAT credit amount before the Finance Act, 2003 came into effect and not taking refund of such equivalent amount in cash had made such an observation. Therefore, the Hon'ble Supreme Court never intended the appellate authority not to consider the period after 22.12.2002, rather it directed the appellate authority to consider the totality of the facts and circumstances before making any order for recovery. 3.11 He further submits that the fact of the appellants having not utilized the credit upto 22.12.2002 was always on records before the Hon'ble Supreme Court. If the intent of the Hon'ble Supreme was to only confine the claim of refund to work out the demand for the period upto 22.12.2002, then, there was no reason for it to set aside the Hon'ble High Court's order and direct the Appellants to file appeal to Commissioner (Appeals). The matter could have been disposed by the Apex Court itself, since it has always been the plea of the Appellants since inception that they have not got any excess refund equivalent to Cenvat credit pertaining to the period upto 22.12.2002 by virtue of utilizing the same befor....
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....und under this notification during December 2006. 7. A similar case came up before this Tribunal in the case of New India Wire and Cables [2008 (232) ELT 681 (Tri-Del)] wherein the assessee did not take the available Cenvat credit during the period it was available and paid the excess from the PLA and took the refund thereof. Later on, they took Cenvat credit which was available and paid less duty. In that case, the excess refund availed by the assessee during the initial period was sought to be denied. In that case, this Tribunal held that it is situation of revenue neutrality, therefore denial of refund is not sustainable." 7. Further, in the case of New India Wire & Cables (supra), this Tribunal, has observed as under : "2. After hearing both the sides we find that in terms of Notification No. 56/2002, the respondent, who is located in Jammu was required to pay duty by first exhausting their Modvat credit available and then through their PLA. The duty paid in cash through PLA was available as refund to the assessee. It so happened that during the particular period duty was paid by the respondent by cash, without first exhausting the Cenvat credit. This....