Adjustment of unconfirmed duty amount from refund admissible under Rule 5.

PJ/CASE LAW/2015-16/2919

Case:- ASIL INDUSTRIES LTD. VERSUSCOMMISSIONER OF CENTRAL EXCISE, JAIPUR-I

Citation:- 2015 (325) E.L.T. 154 (Tri. - Del.)

Brief facts:- The appellant are manufacturers of CR Steel strips and HNT Steel Strips from HR Coils. They were exporting the CR Steel Strips and HNT Steel Strips under bond without payment of duty. In respect of the HR Coils and other inputs they were availing the Cenvat credit. Since the accumulated Cenvat credit in respect of inputs used in the manufacture of finished products exported out of India under bond/LUT could not be utilised by them for payment of duty on the goods cleared for home consumption or for payment of duty on the clearances for export under the rebate claim, they, in accordance with the provisions of Rule 5 of the Cenvat Credit Rules, 2004, filed a refund claim for an amount of Rs. 64,50,989/- for the quarter ending 30th September, 2004, that is for the period from July, 2004 to September, 2004. Here it may also be stated that in course of manufacture of CR Steel Strips and HNT Steel Strips from HR Coils, waste was also being generated which was being cleared on payment of duty. The Assistant Commissioner while sanctioning the above refund claim, has held that the duty of Rs. 2,60,829/- paid on the waste generated during the quarter and the amount of Rs. 6,99,201/- recovered as duty by the appellant on sale of waste and scrap arisen during the course of manufacture of finished products during January, 2003 to 30-6-2004 and an amount of Rs. 90,608/- as interest on this duty is recoverable from the appellant and accordingly after deducing an amount of Rs. 2,60,829/- + Rs. 6,99,201/- + Rs. 90,608/- (interest), he paid an amount of Rs. 54,62,559/- as the refund under Rule 5 of the Cenvat Credit Rules, 2004. On appeal being filed to Commissioner (Appeals) against this order of the Assistant Commissioner, the Commissioner (Appeals) vide order-in-appeal dated 9-9-2005 dismissed the appeal. Against this order of the Commissioner (Appeals), this appeal has been filed.

Appellant’s contention:- Ms. Mansi Garg, Advocate, the learned Counsel for the appellant, pleaded that in terms of Rule 5 of the Cenvat Credit Rules, 2004, cash refund of Cenvat credit taken in respect of inputs or input services used in the manufacture of finished products cleared for export under bond/LUT is admissible, that this cash refund is subject only to the conditions that the credit cannot be utilised for payment of duty on the finished goods cleared for home consumption or for export on payment of duty or that the exports of the finished products have not been made by claiming input duty drawback or input duty rebate, that the conditions prescribed in Rule 5 of the Cenvat Credit Rules, 2004 for cash refund stand satisfied by the appellant, that there is no authority for deduction from the refund amount, the duty payable on the scrap or the amount recovered by the assessee from the customers on sale of scrap as Central Excise duty, that deduction of an amount of Rs. 2,60,829/- + Rs. 69,201/- + Rs. 90,608/- is without any authority of law, that no duty demand of these amounts has been confirmed by the Department against the assessee and, hence, the same cannot be deducted from the refund claim, that in this regard she relies upon the Tribunal’s order in the case of M/s. Bharat Sanchar Nigam Limitedv. CCE, Jaipur reported in 2014-TIOL-1642-CESTAT-DEL = 2014 (36)S.T.R.1054 (T)and that in view of this, the impugned order disallowing the refund claim to the extent of Rs. 10,50,638/- is not correct.

Respondent’s contention:-Shri R.K. Grover, the learned DR, defended the impugned order by reiterating the findings of the Commissioner (Appeals).

Reasoning of judgment:- In terms of Rule 5 of the Cenvat Credit Rules, where any input or input services have been used in the manufacture of final product cleared for export under bond/LUT or has been used in the intermediate product cleared for export, the Cenvat credit in respect of input or input services so used shall be allowed to be utilised by the manufacturer towards payment of Central Excise duty on the final products cleared for home consumption or cleared for export on payment of duty and where for any reason, such adjustment is not possible, the accumulated Cenvat credit can be refunded in cash subject to the safeguards and conditions as prescribed by the Central Government by notification issued in this regard. In this case there is no dispute that the conditions prescribed in the notification issued under this Rule and also the conditions of the exports not having been made by claiming duty drawback or input duty rebate stand satisfied. The only dispute is as to whether the duty payable on the scrap cleared for home consumption during the quarter to which the refund claim pertains and also whether the amount recovered from the customers as duty on the sale of waste and scrap during the period from January, 2003 to 30th June, 2004 can be deducted from the refund. In their view for these deductions there is absolutely no authority. The appellant would be eligible for cash refund of the accumulated Cenvat credit taken in respect of inputs which have been used in the manufacture of goods which has been exported under bond/LUT and in this case, cash refund can be disallowed only to the extent the cenvated inputs are contained in the scrap cleared for home consumption on payment of duty. In view of this, the impugned order is set aside and the matter is remanded to the Assistant Commissioner for re-determining the quantum of cash refund under Rule 5 of the Cenvat Credit Rules, 2002 payable to the appellant and the differential amount, if any, due shall be paid to them. The appeal stand disposed of, as above.

Decision:- Appeal disposed of

Comment:- The analogy of the case is that cash refund under Rule 5 can be disallowed only to extent of cenvated inputs contained in scrap cleared for home consumption on payment of duty. Consequently, the appeal was allowed by way of remand to re-compute the amount refundable under Rule 5 of the Cenvat Credit Rules, 2004.

Prepared by:- Monika Tak

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PJ/CASE LAW/2015-16/2919

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