TaxTMI 
TaxTMI 
TaxTMI 
2025 (8) TMI 1653
X X X X Extracts X X X X
X X X X Extracts X X X X
....ps & Brass Caps falling under Chapter Sub-Heading Nos. 74092100, 74093100 & 74199930 respectively of Central Excise Tariff Act, 1985. The Appellant was clearing the finished goods on payment of Central Excise duty in the domestic market as well as for export. 1.2. For the purpose of manufacturing their final products, the Appellant imports various inputs including Zinc Ingots from foreign suppliers. The Appellant imported the said inputs under Advance Authorization scheme without payment of Customs duties against export obligation of final products. The Appellant imported such goods during the period 12.01.2012 to 31.01.2014, i.e. prior to the introduction of GST regime. 1.3. The Appellant could not fulfil the export obligation in proportion to the imported Zinc Ingots within the prescribed time limit. Consequently, the Appellant was issued a deficiency letter dated 15.05.2019 by the office of the Additional DGFT to pay appropriate Customs duties along with interest to the extent of the excess import of Zinc Ingots. 1.4. The Appellant paid a total of Rs. 6,47,119/- (CVD) and Rs. 2,42,676/- (SAD) on account of excess import of Zinc Ingots through demand draft post 01.07.2017, i.e....
X X X X Extracts X X X X
X X X X Extracts X X X X
....NVAT credit where the balance of the said amount as on the appointed day has been carried forward under this Act." 1.8. Pursuant to filing of refund claim dated 29.08.2019, the Appellant was issued Show Cause Notice dated 01.10.2019, proposing to reject the refund claim filed by the Appellant. 1.9. The Learned Assistant Commissioner vide Order-in-Original dated 05.12.2019 rejected the refund claim of Rs. 8,89,795/- in view of the provisions of Sections 142(3) read with 142(6)(a) of the CGST Act, 2017 and Rule 9(1)(b) of the CENVAT Credit Rules, 2004. 1.10. Aggrieved by the Order-in-Original dated 05.12.2019, the Appellant preferred appeal before the Learned Commissioner (Appeals). The Learned Commissioner (Appeals), Surat vide Order-in-Appeal dated 28-02-2020 upheld the Order-in-Original rejecting the refund claim of the Appellant and dismissed the appeal filed by the Appellant. The reasons in brief for dismissal of the appeal in the impugned order are as below: (a) For getting refund of CENVAT credit under existing law i.e. under CENVAT Credit Rules, 2004, one has to avail the CENVAT credit under the said rule. The Appellant had paid the duty after the appointed date, i.e. 01....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Learned Counsel for the Appellant submits that suppression of fact or malafide intention cannot be made out against the Appellant. He submits that the Appellant had suo-moto reported the excess imports made in Form ANF 4F. Further, the deficiency letter issued by DGFT was merely an intimation letter and not a demand notice, and that the deficiency letter had not invoked any provisions of the Customs Act or the Central Excise Act. Moreover, there have been no adjudication proceedings with respect to fraud, wilful misstatement or suppression of fact conducted against the Appellant and suppression of fact or malafide intention is not alleged/established against the Appellant. Thus, denial of Cenvat Credit and the resulting refund of CVD and SAD by invoking Rule 9(1)(b) of the Cenvat Credit Rules, 2004 is untenable. In this regard, the Learned Counsel has placed reliance on the following orders pronounced by CESTAT:- (a) Rubamin Private Limited v. Commissioner of C.E. & S.T. - Vadodara-II, Excise Appeal No. 10409 of 2020 - SM - CESTAT, Ahmedabad (b) M/s. ITCO Industries Limited v. The Commissioner of GST & Central Excise (supra) 3. Shri Anand Kumar, learned AR for the department ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f Central Excise & Service Tax vs. Aculife Healthcare Pvt. Limited (supra) the Division Bench of this Tribunal has upheld the grant of refund of CVD and SAD after introduction of GST on imports prior to introduction of GST due to non fulfilment of export obligation. This Tribunal upheld the grant of refund under Section 142(3) of the CGST Act, 2017 read with Section 11B of Central Excise Act, 1944. 4.5 In the impugned order, the learned Commissioner (Appeals) in Para 12 of his order stated that in the instant case, the appellant had made payment of Customs duties (CVD & SAD) for excess import under Advance Authorisation (licenses) vis-à-vis the export actually made by them. The appellant had never disclosed the said service tax liability to the department at any point of time and paid the same only after noticed by the DGFT. The appellant did not come clean with the facts before the department. Thus, the provisions of said Rule 9(1)(b) of Cenvat Credit Rules, 2004, which restricts the credit if the duty becomes recoverable on account of any non-levy or short levy by reason of fraud, collusion or any willful mis-statement or suppression of facts or any contravention of any p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ted 18.04.2019 re-submitted a fresh application for Advance Authorisation dated 12.01.2012 to DGFT office for Export Obligation Discharge Certificate attaching the revised ANF 4F. The Appellant has disclosed the detail of excess import of 33772 kgs of Zinc Ingot in point no.7 of ANF 4F. The copy of that letter has been attached in the memo of appeal as Annexure - 4. Based on the above said application and excess import disclosed, the DGFT office vide letter dated 15.05.2019 issued deficiency letter requesting appellant to pay Custom duty along with interest on 33772.46 kgs of excess imports of Zinc Ingots to discharge the liability in respect of above Advance Authorisations. In pursuance to which the appellant made the payments. 4.8 Therefore, I find considerable force in the arguments of learned Counsel for the appellant that issuance of deficiency letter asking for making payment of additional duties of excise on account of import of excess of eligible quantities against advance authorization, is nothing but mere an opportunity provided to regularize the bona fide default made by authorization holder. The issuance of deficiency letter does not tantamount to initiation of assessm....