Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *   CBIC issues draft rules for Customs valuation *  Top Headlines: Threshold for Benami deals, green bond investors, and more *  Govt aims 1-hour clearance for goods at all ports *  Exporters Allowed To Use RoDTEP, RoSCTL Scrips To Pay Customs Duty, Transfer Them; Rules Amended *  Millions of labourers to be affected by brick producers’ strike over hike in GST, coal rates *  Inauguration of ‘kendriya GST parisar’ *  Transporter can seek Release of Conveyance alone, not Goods under GST Act: Madras HC *  GST: Quoting of DIN Mandatory for Responding to Notice, Govt Modifies Portal *  Firms can soon file claims for GST credits of ?400 cr *  CBIC issues modalities for filing transitional credit under GST. *  Mumbai: Man creates 36 fake GST firms, arrested for input tax credit fraud of Rs 23 cr *  Report to restructure Commerce Ministry under study; idea is to set up trade promotion body: Goyal *  Firms can soon file claims for GST credits of ?400 cr *  Gambling Alert! Govt May Levy Up To 28% GST; UP, Bengal Back Move *  EPFO backs raising retirement age to ease pressure on pension funds *  India Moving Up Power Scale, Set to Become Third Largest Economy By 2030 *  Airfares Get Expensive: What Changes for Flyers From Today? *  IRCTC Latest News: Passengers to Pay More For Cancelling Confirmed Rail Tickets Soon. *  IBC prevails over Customs Act, says Supreme Court. *  As GST enters sixth year, a time for evaluation and reassessment *  There’s GST on daily essentials as Centre needs money to buy MLAs: Arvind Kejriwal *  Now, GST on cancellation of confirmed train tickets, hotel bookings *  GST kitty for top States could rise 20% in FY23, says Crisil *  French customs officials seize another cargo vessel over Russia sanctions *  TradeLens builds on Asia momentum with Pakistan Customs deal *  Hike tax on tobacco, reduce affordability & increase revenue: Civil society organizations to GST council *  Bihar: ?10 crore tax evasion on tobacco products detected in raids *  Centre failed on GST, COVID; would it be anti-national? Rajan on Infosys row *  Service Tax not Chargeable on Income Tax TDS portion paid by recipient: CESTAT grants relief to TVS *  Foreign portfolio investors make net investment of Rs 7575cr in Sep so far
Subject News *  Run-up to Budget: Monetary threshold for GST offences may rise to Rs 25 cr *   GST (Tax) E-invoice Must For Businesses With Over Rs 5 Crore Annual Turnover *   Both Central GST and excise duty can be imposed on tobacco, rules Karnataka high court *   CBIC Issues Clarification On Extended Timelines For GST Compliance *   CBIC Issues Clarification On Extended Timelines For GST Compliance *  Budget 2023- 9.6 crore gas connections *  GST: Tamil Nadu Issues Instructions for Assessment and Adjudication Proceedings *  GST: CBIC Extends Last Date for filing of ITC *  GST collection in September surpasses Rs 1.4 lakh crore for straight seventh time *  Dollar smuggling case: Customs chargesheet names M Sivasankar as key conspirator. *  Hike in GST rates fuels inflation *  Assam: CBI arrests GST commissioner in Guwahati *  GST fraud worth ?824cr by 15 insurance Cos detected *  India proposes 15% customs duties on 22 items imported from UK *  Decriminalising certain offences under GST on cards *  Surge in GST collections more due to higher inflation: India Ratings *  MNRE Notifies BCD and Hike in GST Rates as ‘Change in Law’ Events But With a Condition | Mercom India *   Solar projects awarded before customs duty change allowed cost pass-through *  Rajasthan High Court Dismisses Writ Petitions Challenging Levy Of GST On Royalty *   GST revenue in September likely at Rs 1.45 lakh crore *  Govt working on decriminalising certain offences under GST, lower compounding charge *  Building an institution like GST Council takes time, trashing is easy: Sitharaman *  GST collections in Sept may touch ?1.5 lakh crore *  KTR asks Centre to withdraw GST on handlooms *  After Gameskraft, More Online Gaming Startups To Receive GST Tax Claims *  Madras HC: AAR Application Filed Under VAT Does Not Survive After GST Enactment *  Threshold for criminal offences under GST law may be raised *  Bengaluru: Gaming company faces biggest GST notice of Rs 21,000 crore *  CBIC clarifies Classification of Cranes for GST, Customs Duty *  Customs seize gold hidden in bicycle in Kerala airport  

Comments

Print   |    |  Comment

PJ/Case Law /2016-17/3258

Whether refund claim is allowed in respect of the unutilised balance of CENVAT credit under rule 5 of Central Excise.

Case:-COMMISSIONER OF CENTRAL EXCISE., PUNE-II Versus RADHA KANHAIYA TEXTILE PROCESSORS

Citation:-2016 (336) E.L.T. 654 (Tri-Mumbai)    
 
Brief Facts:-The brief facts of the case are that the respondent assessee engaged in manufacture of textile and filed the refund claim for the period 7-9-2012 for an amount of Rs. 19.49 lakhs in respect of the Cenvat credit remained unutilized when the goods manufactured by them were exported. The adjudicating authority sanctioned the refund claim. Aggrieved by such order, Department preferred an appeal before the first appellate authority. The first appellate authority, after following the due process of law, rejected the appeal filed by the Department.
Appellant Contention:-Learned AR would submit that both the lower authorities were in error in sanctioning the refund claim as the refund claim has arisen out of the unutilized Cenvat credit taken under deemed credit provisions. The claim which has been filed by the respondent on 26-3-2003 and sanctioned by the adjudicating authority in July, 2003 was after rescinding of notification, which granted benefit of deemed credit. It is his submission that the lower authorities were also in error in considering that the refund claims, which should have been filed quarterly and not for two quarters at a time. It is his further submission that the refund claim for quarter ending 31-3-2003 was filed on 21-3-2003 before the quarter ending, which is also not correct. He would submit that the lower authority relying upon the Notification No. 6/2002 and holding that non-filing of refund claim quarterly is procedural infraction is incorrect.
Respondent Contention:-Learned Counsel appearing for the Respondent would submit that identical issue that interpreting the provisions of identical worded notification, the Hon’ble High Court of Gujarat in the case of CCE, Surat-I v. Annapurna Industries Pvt. Ltd. - 2010 (255)E.L.T.197 (Guj.) and in the case of CCE, Surat-I v. Swagat Synthetics - 2008 (232)E.L.T.413 (Guj.) has held in favour of the assessee.
Reasoning of Judgment:-On perusal of the records, we have find that it is not in dispute that the appellants were eligible to avail deemed credit on the inputs procured by them for manufacture of textile and textile articles, during the period Sept., 2002 to Jan., 2003. It is also undisputed that during the relevant period, the appellant had manufactured and exported the goods on payment of duty. We have found that there is no doubt that unutilized Cenvat credit lying in the balance of the Books of the respondent is liable to be refunded to him. No provisions were brought to our notice which indicate that such deemed credit would lapse after rescinding of Notification No. 6/2002. “I have carefully gone through the case records as well as the submissions made by the appellants as well as the respondents. The adjudicating authority has allowed refund claim filed on 26-3-2003 of unutilized balance in the deemed credit account earned by the respondents during the period form 7-9-2002 to 12-1-2003 as per the provisions of Notification No. 53/2001-C.E. (N.T.), dated 29-6-2001 issued under Rule 11 of Cenvat Credit Rules, 2002. I have find that the respondents had filed refund claim on 16-3-2003, but the adjudicating authority sanctioned the refund claim on 16-7-2003, when deemed credit provisions ceased to exist with effect from 1-4-2003. Since the respondents have filed the refund claim in time i.e. when the provisions of Notification No. 06/2002-C.E. (N.T.) were in existence, therefore, the claim has been rightly sanctioned. As regards the contention of the department that the claim was not filed on quarterly basis, the same is only a procedural matter and cannot come in the way of substantive benefit of refund which is otherwise admissible. There is, therefore, no merit in the appeal filed by the Department. In our view the concurrent findings of both the lower authorities that the appellant are eligible to avail Cenvat credit has not been controverted by the Revenue in the grounds of appeal. The grievance of the Revenue seems to be that the respondent had filed the refund claim before the expiry of the quarter ending 31-3-2003 is a non-starter and the assessee can plan his business and can file the refund claim even before the quarter comes to an end. The other grievance of the Revenue that non-filing the return correctly is a procedural lapse as also and non-starter as when there is no dispute as to the fact that the assessee respondent in this case has utilized the inputs in manufacturing and exported the goods, the denial of credit will not be in consonance of the law. The reliance placed by the learned AR on the judgment of the Apex Court are on total different facts wherein interpretation of the exemption notification was being considered by the Apex Court, while in this case the issue is only filing of refund claim for a particular quarter belatedly. Even after such belated filing, the refund claim for a particular quarter is within the period of limitation.
 
Decision:- The appeals is accordingly is rejected.

Comment:-The gist of the case is that the fact that appellant are eligible to avail Cenvat credit has not been controverted by the Revenue in the grounds of appeal. The grievance of the Revenue seems to be that the respondent had filed the refund claim before the expiry of the quarter ending 31-3-2003 is a non-starter and the assessee can plan his business and can file the refund claim even before the quarter comes to an end.
 
Prepared by:- Bharat

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com