2024 (3) TMI 180

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....mmissioner rejecting the appellant's claim of refund. 2. The appellant is a registered manufacturer and pays Central Excise duty as applicable. By a conditional exemption notification no. 30/2004-CE dated 9.7.2004, its goods were exempted subject to the condition that no Cenvat credit is availed on the inputs or capital goods. It opted for the exemption and reversed the Cenvat credit lying in stock on that date and the Cenvat credit on the work in progress and finished goods lying in stock on that date. Thereafter, it cleared the goods claiming the exemption. 3. Later, on 22.6.2017, the appellant claimed refund of the Cenvat credit which it had reversed to claim the benefit of the exemption notification which claim was rejected by the Ass....

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....this Exemption notification and had, in fact, availed its benefit. The condition for this exemption notification is that no Cenvat credit on inputs or capital goods has been taken. On 8.7.2004, the appellant had inputs and capital goods on which Cenvat credit was taken by the appellant. Needless to say that such inputs were used to manufacture goods which were cleared therefore claiming the exemption under this notification. To claim this exemption, the appellant should NOT TAKE Cenvat credit on capital goods or inputs. 5. This exemption notification was a conditional notification and therefore, it was open to the appellant to either fulfill this condition and claim the exemption or not fulfill this condition and NOT claim the exemption. T....

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....o Cenvat credit should have been availed before opting to clear the goods under the notification. It says that no Cenvat credit should be availed on the inputs and capital goods on the goods which can only mean the inputs or capital goods used in the manufacture of those goods which are cleared availing the benefit of the notification. 8. When the appellant cleared the goods after 8.7.2004 availing the benefit of the notification, such goods may have been manufactured before or after this date. If the goods were manufactured before this date- either fully or partly- they would have been lying as finished goods or as work in progress on 8.7.2004 and Cenvat credit would have been availed on the inputs and capital goods which had gone into th....

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....use B bought them after 8.7.2004 putting A at an advantage and B at a disadvantage. 11. There is still another reason why the prayer in this appeal cannot be accepted. Assessment (which includes self-assessment) is like a decree of the civil court and refund is like its execution. While considering an application for refund, the assessment cannot be re-opened or modified. Refund can be sanctioned only if it flows from the assessment and not so as to alter it. This is a well-settled legal position. 12. In Collector of Central Excise versus Flock India 2000 (120) E.L.T. 285 (S.C.) the Assistant Collector had, after examining the classification lists filed by Flock India (as assessees were required to during the relevant period), rejected th....