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/2014-15/2212

Whether refund of accumulated credit of earlier period admissible if product becomes exempt later?

Case:- RAYMOND LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, MUMBAI-III
  
Citation:- 2011 (273) E.L.T. 582 (Tri. - Mumbai)
 
 
Brief facts:-Facts of the case are that the appellant is the manufacturer of yarn and textile. As per the Government policy on textile articles, the appellant has opted for exemption from payment of duty as provided under Notification No. 30/2004 dated 9-7-2004 with effect from July, 2004. Prior to July, 2004 the appellant was paying excise duty on the final product manufactured and removed by them. They were also availing CENVAT credit against the inputs and capital goods received in their factory which are used in the manufacturing of their final products. On the date of opting out of MODVAT scheme to exemption scheme under Notification No. 30/04, dated 9-7-2004, there was unutilized accumulated CENVAT credit balance of Rs. 31,20,523/- which was lying in their CENVAT credit account. The appellants filed the refund claim of the said amount as per Rule 5 of the Cenvat Credit Rules, 2004 which was denied by both the lower authorities. Against the said order, the appellant is before the Tribunal.
 
 
Appellant’s contentions:-Shri Prakash Shah, learned Advocate appeared for the appellant and submitted that the adjudicating authority has rejected their refund claim on the ground that the appellant has not produced any documents evidencing the export of goods for which they are claiming the above unutilized accumulated CENVAT credit as per Rule 5 of CENVAT Credit Rules, 2004. He further submitted that on appeal before the Commissioner (Appeals), the Commissioner (Appeals) also rejected their refund claim as the claim is not maintainable as per Rule 11(3)(i) of the Cenvat Credit Rules, 2004. In support of their claim, he submitted that the provisions of Rule 11(3)(i) were inserted into statute vide Notification No. 10/07 with effect from 1-3-2007. Therefore, as on 9-7-2004, these rules were not applicable to the case of the appellant as the provisions of Rule 11(3) are not made applicable retrospectively.
 
With regard to issue whether their refund claim is maintainable or not as per Rule 5 of the Cenvat Credit Rules, 2004, he relied on the decision of Union of India v. Slovak India Trading Co. Pvt. Ltd. - 2006 (201)E.L.T.559 (Kar.) = 2008 (10)S.T.R.101 (Kar.)which was affirmed by the Hon’ble Apex Court as reported in 2008 (223) E.L.T. A170 (S.C.). He also relied on the decision in the case of Jain Vanguard Polybutylene Ltd. v. CCE, Nashik - 2009 (247)E.L.T.658 (Tri. - Mumbai) which was affirmed by the Bombay High Court vide 2010 (256)E.L.T.523 (Bom.). He also relied on the decision of this Tribunal in the case of Shree Prakash Textiles (Guj.) Ltd. v. CCE, Ahmedabad - 2004 (169)E.L.T.162 (Tri. - Mumbai)and in the case of Bombay Dyeing & Manufacturing Co. Ltd. vide Order No. A/254/2007/C-I (EB), dated 10-4-2007. Therefore, he submitted that their refund claim is maintainable. In addition to the above submissions, Shri Prakash Shah submitted that the appellant has reversed the CENVAT credit involved in the inputs, work-in process and finished goods lying in their factory on the date of opting out of MODVAT scheme i.e. on 9-4-2004.
 
Respondent’s contentions:- Shri H.B. Negi, learned SDR appearing on behalf of the Revenue submitted that it is not coming out from the records, whether the appellant has reversed the CENVAT credit involved in inputs, work-in process and finished goods lying on 9-4-2004 or not. Therefore, it needs verification. He further submitted as per Rule 5 of the Cenvat Credit Rules, 2004 unutilised credit can be refunded in case of export only, therefore, the adjudicating authority has rightly rejected their refund claim. To support his contention he placed reliance on CCE, Chandigarh v. Rama Industries - 2009 (238)E.L.T.778 (Tri. - Del.) = 2010 (20)S.T.R.537 (Tri. - Del.). He also relied on the judgment in the case of CCE v. Chandra Laxmi Tempered Glass Co. Pvt. Ltd. - 2009 (234)E.L.T.245 (H.P.).
 
Reasoning of judgment:- The Hon’ble tribunal have considered the submissions made by both the sides in detail. There is no doubt that when the appellant has opted out from MODVAT scheme from July, 2004, therefore, the appellant are required to reverse CENVAT credit involved in input, work-in process and finished goods lying on stock on date of opting out of MODVAT scheme. They do agree that the contention of the learned SDR that the said fact is not ascertainable from the records, which needs examination.

They come to the issue whether the provisions of Rule 11(3) of the CENVAT credit are applicable to the case or not? Admittedly these provisions came with effect from 1-3-2007 and are not applicable retrospectively, therefore, the said provisions are not applicable to the facts of this case. Now, they come to the issue whether the claim of the appellant of refund is maintainable under Rule 5 of CENVAT Credit Rules, 2004 or not? As in the case of Slovak India Trading Co. Pvt. Ltd.(supra) the Hon’ble Karnataka High Court has answered the references in paragraph 5 of the order which is reproduced herein below :-

“5.There is no express prohibition in terms of Rule 5. Even otherwise, it refers to a manufacturer as we see from Rule 5 itself. Admittedly, in the case of hand, there is no manufacture in the light of closure of the Company. Therefore, Rule 5 is not available for the purpose of rejection as rightly ruled by the Tribunal. The Tribunal has noticed that various case laws in which similar claims were allowed. The Tribunal, in our view, is fully justified in ordering refund particularly in the light of the closure of the factory and in the light of the assessee coming out of the Modvat Scheme. In these circumstances, we answer all the three questions as framed in para 17 against the Revenue and in favour of the assessee.”

The view taken by the Hon’ble Karnataka High Court has been affirmed by the Hon’ble Apex Court. Therefore, they have no hesitation to follow the same. Accordingly, they allow the refund claim of the appellant lying unutilized accumulated in their CENVAT credit account on 9-7-2004 which do not include the credit involved in inputs, work-in process or finished goods lying in stock on 9-7-2004 i.e. the date of opting out of MODVAT scheme.

The matter is remanded back to the adjudicating authority to ascertain the fact whether the appellant has reversed the CENVAT credit involved in inputs, work-in process and finished goods lying in stock on 9-7-2004. If the appellant has reversed, then the balance amount accumulated unutilized in CENVAT credit account shall be sanctioned and refunded in cash. With these observations, the appeal is allowed by way of remand to examine as directed above. The refund claim of the appellant shall be disposed of within one month of the receipt of this order.
 
Decision:- The appeal was allowed.
 
Comment:- The case pertains to old provisions when Rule 11(3) of Cenvat Credit Rules, 2004 was not in force. The analogy of the case is that assessee eligible for the refund of unutilized accumulated CENVAT credit pertaining to earlier period when product was cleared on payment of duty, if the assessee has reversed credit involved in inputs, work in process and finished goods lying in stock on the date of opting out of MODVAT scheme. However, in the present scenario, Rule 11(3)(ii) specifically restricts even the utilisation of credit pertaining to earlier period from the date of availing absolute exemption and states that the credit stands lapsed.  

Prepared by: Monika Tak

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