AI Drafter 
TaxTMI 
TaxTMI 
2025 (4) TMI 884
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....r 39 of the First Schedule to the Central Excise Tariff Act, 1985. During the period from July, 2010 to September, 2011, the respondent had made payment of excise duty on CIF value of the goods exported by them. The excise duty so determined was discharged by debiting from the CENVAT Credit account maintained by the respondent. 3. Thereafter, the respondent filed 15 rebate claims with the jurisdictional Assistant Commissioner of Central Excise seeking rebate of excise duty paid on the export of finished goods in terms of Notification No. 19/2004-C.E.(N.T.) dated 06.09.2004. These rebate claims were duly audited by the audit section of the Department and thereafter disbursed in favour of the respondent on various dates. 4. Subsequently, proceedings were initiated against the respondent by the Ld. Commissioner of Central Excise and Service Tax, Haldia Commissionerate by invoking the extended period of limitation, by way of issuance of the Show Cause Notice dated 23.04.2015 alleging inter alia that the respondent had claimed excess refund of excise duty by way of including the value of freight charges and insurance charges with the FOB value in the respective A....
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.... erroneously, needs to be recovered in terms of Sec 11A of the Central Excise Act,1944. (v) While deciding the issue the ld. adjudicating authority has erred in concluding that the Department was in complete knowledge of the modus operandi followed by the Noticee while sanctioning the said rebate claims. (vi) The ld. adjudicating authority failed to appreciate that the assessee never disclosed the inclusion of Insurance and Freight in the Transaction value to the department in any manner. (vii) The ld. adjudicating authority erred in holding that the case was Audited hence there is no suppression. He failed to appreciate that they have not disclosed the inclusion of Insurance and Freight in Transaction value to the Audit department. (viii) The ld. adjudicating authority failed to appreciate that the assessee wilfully suppressed the fact of inclusion of Insurance and freight in transaction Value with intention to excess debit the duty and claimed excess Rebate fraudulently. (ix) The ld. adjudicating authority has erred in not considering the view that the noticee has wilfully suppressed the whole fact of excess debit of Central Excise dut....
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....n is unsustainable in law. Reference in this regard, is invited to the following decisions : i. Nizam Sugar Factory v. Collector of Central Excise, A.P. [2006 (197) ELT 465 (S.C.)] ii. ECE Industries Limited Versus Commissioner of Central Excise, New Delhi [2003 (3) TMI 136-SUPREME COURT] iii. M.K. Enterprises Versus Commissioner of CGST & CX, Patna-II Commissionerate (2023 (6) TMI 372-CESTAT KOLKATA] (ii) The respondent has been regularly filing its ER-1 returns. No objection or reservation of any kind whatsoever was raised in respect of the said ER-1 returns by the Department. Further, the rebate claims filed by the Respondent were duly audited by the audit section prior to sanction/disbursement thereof. Therefore, the modus operandi followed by the Respondent was within the knowledge of the Department while sanctioning the said rebate claims. The Respondent submits that it is a settled position in law that extended period cannot be invoked alleging suppression when the Department was fully aware of the facts of the case. Reliance in this regard is placed on the following judgments : i. Modipon Fibre Company Vs. Commissioner of C. Ex.,....
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....s incorrect. It is an undisputed fact that the Respondent has paid excess excise duty, i.e., on the CIF value of exports, which exceeds the FOB value. Even otherwise, Courts have taken a consistent view that where the exercise is revenue neutral, there is no need for recovery of erroneous refund.Reference in this regard is made to the following judgments : i. SMT Machine (India) Ltd. vs. Commissioner of C. Ex. Chandigarh-1 [2016 (340) ELT 83 (P&H)] ii. Baroda Switchgears vs. Commissioner of C. Ex. &Cus., Vadodara-1 [2007 (216) ELT 387 (Tri.-Ahmd.)] iii. V.E. Commercial Vehicles Ltd. vs. Commr. of C.Ex. &S.Tax, Indore [2018 (15) GSTL 291 (Tri. Del.)] (vii) The refund of the excise duty has been sanctioned to the Respondent vide rebate orders dated 09.12.2010, 17.01.2011, 03.03.2011, 11.04.2011, 20.05.2011, 03.06.2011, 29.06.2011, 29.08.2011,26.09.2011, 18.10.2011 and 28.11.2011. Further, the Department has not filed any appeal against the said rebate orders contending or disputing the manner of calculation within the stipulated time limit. In the present case, since no appeal has been preferred by the Department, the refund order....
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....and thus, attained finality. In these circumstances, we find that the respondent is eligible for the entire amount of duty paid on the CIF value by way of refund, in cash, as well as by way of re-credit of the balance amount. 10.1. In this regard, we take note of the fact that with the introduction of G.S.T., the amount to be re- credited, is required to be paid in cash. Thus, even if the amount of refund is restricted to the duty paid on the FOB value, the balance amount is either to be re- credited or paid in cash, in view of the introduction of the G.S.T. law. 11. We further observe that the Show Cause Notice has been issued by invoking the extended period of limitation. In this regard, it is an admitted position that the issue of payment of duty on CIF value was known to the Department as the very same issue had been adjudicated vide order dated 31.03.2014. Thus, for the subsequent period, the demand cannot be raised by invoking suppression clause for the extended period of limitation, as has been held by the Hon'ble Supreme Court in the case of Nizam Sugar Factory v. Collector of Central Excise, A.P. [2006 (197) E.L.T. 465 (S.C.)] wherein it was observed as under: - ....