Commissioners Of Central Excise vs Sit Flexible Hose Pvt Ltd
- CitationAppeal No. : E/557/2011
Ratio decidendi
The rule this decision rests on
Where an assessee has debited an amount from its Cenvat credit account, and that amount is subsequently held admissible and restored to the credit account, which the assessee then utilises towards payment of excise duty, the assessee is not entitled to a cash refund of that amount, as no liability was ever insisted upon by the Revenue to be paid in cash or from the PLA, and the cash-refund precedents relied upon by the First Appellate Authority, which concerned situations where the Revenue insisted on payment from the PLA and prevented utilisation of Cenvat credit, are inapplicable on different facts.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[ Arising out of OIA-COMMR-A-/49/VDR-II/2011 dtd 3.2.2011Passed by Commissioners of Central Excise, Customs and Service Tax-VADODARA-II ]
Commissioners of Central Excise, - Appellant(s) Customs and Service Tax-VADODARA-II
Vs.
Sit Flexible Hose Pvt Ltd - Respondent(s)
Represented by For Assessee : None For Revenue : Shri Alok Srivastava (Authorised Representative)
For approval and signature :
Mr. H.K. Thakur, Hon.ble Member (Technical)
1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No 3 Whether their Lordships wish to see the fair copy of the Order?
Seen 4 Whether Order is to be circulated to the Departmental authorities?
Yes
CORAM :
Mr. H.K. Thakur, Hon.ble Member (Technical)
Date of Hearing / Decision : 10/3/2015
ORDER No. A/10217 / 2015 dtd 10/3/2015
Per : Mr. H K Thakur;
This appeal has been filed by the Revenue against OIA No OIA-COMMR-A-/49/VDR-II/2011 dt 3.2.2011 under which First Appellate Authority has held that the appellant M/s Sit Flexible Hose Pvt Ltd, Vadodara, before him should be sanctioned refund in cash as were not able to utilise the Cenvat Credit in the RG 23.
2. Shri Alok Srivastava, Authorised Representative, appearing on behalf of the Revenue argued that the dispute arouse whether the present respondent was eligible to cenvat credit for the Job Work done on the raw material supplied. The appellant reversed the cenvat credit of Rs 31,38,157/- from their cenvat account which was subsequently held to be admissible. That the present respondent took the cenvat credit of the entire amount is evident from the return of excise duty filed under Rule 12 of the Central Excise Rule for the month December 2009. That the respondent also started utilising the credit so allowed. Learned Authorised Representative appearing for Revenue argued that the order passed by the First Appellate authority is not correct as the respondent was never asked to deposit the amount through cash. That their case was also not covered under the relevant cenvat credit rules as no cenvat credit got accumulated as a result of export of finished goods. He made the Bench to go through the paragraph 4.1 of the appeal memoranda and argued that the case laws relied upon by the First Appellate authority are not applicable when M/s Sit Flexible Hose Pvt Ltd were never insisted upon to deposit amount from PLA or in cash.
3. None appeared on behalf of the respondent when the case was called out for hearing.
4. Heard Learned Authorised Representative for Revenue and perused the case records. The issue involved in the present appeal is whether cash refund is required to be allowed to M/s Sit Flexible Hose Pvt Ltd for certain amount which were debited from the cenvat credit account. It is observed from the facts available that the present respondent debited certain amounts from their cenvat account during the period Sept. 2008 to Decmber2009. Subsequently, the credit reversed by the assessee was held to be admissible and was accordingly allowed in the cenvat account to the appellant. The credit so allowed was availed by the assessee and the same also started utilising the credit in the payment of central excise duty. It is also observed from the case records that at no stage Revenue insisted the assessee to pay the amount in cash. The case laws relied upon by the First Appellate authority in Para No 5 of OIA dtd 3.2.2011 pertains to the situations where liability was insisted by the Revenue to be paid from PLA and assessee was prevented from utilising cenvat credit. As the facts of the relied upon the case laws are different that the present facts the same can not be pressed into service to sanction the refund in cash.
5. From the above observations, the order passed by the First Appellate Authority is required to be set aside and appeal filed by the Revenue is required to be allowed.
6. Appeal filed by the Revenue is allowed.
(Dictated and pronounced in the Court)
(H.K. Thakur) Member (Technical) Swami ??
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