Cce, Mumbai-I vs M/S King Metal Works

IN THE CUSTOMS, EXCISE AND SERVECE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. IV

APPLICATION NO. ST/ROM/693/12 IN APPEAL NO. ST/166/10-Mum

(Arising out of Order-in-Appeal No. SB/11/M-IV/10 dated 21.01.2010 passed by the Commissioner of Central Excise (Appeals), Mumbai.)

For approval and signature: Honble Shri Anil Choudhary, Member (Judicial)

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1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether their Lordships wish to see the fair copy : Seen of the order?

4. Whether order is to be circulated to the Departmental : Yes authorities? =====================================================

CCE, Mumbai-I

: Appellant Versus

M/s King Metal Works : Respondent

Appearance Shri B.K. Iyer, Supdt. (A.R.) : For Appellant None : For Respondent

CORAM: HONBLE SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL)

Date of Hearing : 07.04.2015 Date of Decision: 07.04.2015

ORDER NO.......................................................

Per: Anil Choudhary:

The revenue have filed the present application for rectification of mistake in the final order dated 9/9/2011. The Ground for rectification is that the respondent-assessee had filed claim of refund under Notification No. 5/2006ST and the said refund claim was rejected vide the Order-in-Original and the same was upheld by the Commissioner (Appeals). This Tribunal in para-3 of its order have noted the contention of the assessee that the refund claims where filed under Rule 5 of CENVAT Credit Rules, 2004 in respect of the service tax paid on input services received & used in relation to manufacture. The adjudicating authority considered the claim's as per the provisions of Notification No. 41/2007. The Revenue states that the order of this Tribunal is on a different issue, that is, since exporter is a manufacturer and exporters final product is exempted, the refund claim has been rejected in the Order-in-Original. This issue has not been taken up for adjudication. The show-cause notice also states that limitation under Section 11B of Central Excise Act read with Notification No. 41/2007. There is no where any mention of Rule 5 of the CENVAT Credit Rules, 2004. Whereas this Tribunal in final order had discussed the whole issue in terms of Rule 5 of CENVAT Credit Rules, 2004. Claim of refund under Rule 5 of CENVAT Credit Rules, 2004 was not the subject matter either in the show-cause notice as well as in the Order-in-Original.

2. On perusal of the Order-in-Original I find that in their reply to the deficiency memo the assessee had raised the question of claiming of refund and or consideration of refund under Notification No. 5/2006CE read with Rule 5 of the CENVAT Credit Rules, 2004. The respondent-assessee had contended that without admitting that they are not covered by the provisions of Notification No. 41/2007ST, they had said that the claim of refund may be considered under Rule 5 of CENVAT Credit Rules read with Notification No. 5/2006CE.

3. From a perusal of the Order-in-Appeal I find that the Commissioner (Appeals) have also considered the liability of refund under Rule 5 of the CENVAT Credit Rules and have disallowed the same holding that the refund is available to a manufacture and/or the providers of output service. The assessee herein is a manufacturer cum exporter of exempted goods. Thus the Commissioner (Appeals) have considered the claim of the assessee under both Rule 5 of CENVAT Credit Rules read with Notification No. 5/2006 CE and also under Notification No. 41/2007ST.

4. Having considered the contentions of the Revenue I find that it is a point of law whether the claim was allowable under Rule 41/2007 or under Rule 5 of CENVAT Credit Rules, 2004 read with Notification No. 5/2006-CE. A point of law can be raised at any time. The assessee herein had raised it in the reply to the show-cause notice and I find that the same was not considered in the Order-in-Original, but the same was considered and rejected in the Order-in-Appeal. That the recording of the facts by this Tribunal in para-3, that the appellant had filed the claim of refund under Rule 5 of CENVAT Credit Rules be read as that the appellant had originally filed the refund claim under Notification No. 41/2007 but had subsequently prayed that the refund May also be considered under the provisions of Rule 5 of the CENVAT Credit Rules, 2004. In this view of the matter there is no mistake in the order of the Tribunal, except as taken notice of hereinabove. Thus the rectification application is allowed in part to the extent indicated hereinabove. I further direct the adjudicating authority to consider the refund claim under both the Notification No. 5/2006-ST and Notification No. 41/2007-ST, in view of the several decisions rendered by Tribunal & High Court, subsequent to the passing of Order-in-Original.

(Pronounced in open Court)

(Anil Choudhary)

Member (Judicial)

Sp

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