Deepak Nitrite Ltd vs Commissioner Of Central Excise, ...

(Arising out of Order-in-Appeal No. V3(A)224/BEL/2012-13/860 dated 26.9.2012 passed by Commissioner of Central Excise (Appeals), Mumbai-II)

For approval and signature:

Honble Mr. P.K. Jain, Member (Technical) and Honble Mr. Ramesh Nair, 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 :

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?

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Deepak Nitrite Ltd. Appellant Vs. Commissioner of Central Excise, Belapur Respondent

Appearance: Shri Gajendra Jain, Advocate, for appellant Shri Ashutosh Nath, Assistant Commissioner (AR), for respondent

CORAM: Honble Mr. P.K. Jain, Member (Technical) Honble Mr. Ramesh Nair, Member (Judicial)

Date of Hearing: 3.3.2015 Date of Decision: 3.3.2015

ORDER NO

Per: P.K. Jain

Brief facts of the case are that the appellant filed refund claim for accumulated cenvat credit under Rule 5 of the Cenvat Credit Rules. The case was examined by the original authority and it was found that the appellant has not submitted the details as required under Rule 5 read with the relevant Notification issued under the said Rule. The appellant has filed the application based upon the ratio of the value of the exported goods, vis-`-vis total turnover. On examination, the original authority found that the refund claim is not in order as the said Rule provides for refund of credit accumulated relating to the inputs used in the goods exported. It was also observed that the assessee is not submitting the details of input-output ratio and other details as required. Aggrieved by the said order, the appellant filed appeal before the Commissioner (Appeals). Even there, no such details were submitted by the appellant and accordingly the Commissioner (Appeals) rejected the appeal. Aggrieved by the said order, the appellants are before us.

2. Learned counsel for the appellant submitted that they had prepared the input-output ratio and the cenvat credit relating to the goods exported. According to the leaned counsel, they have already revised their claim from Rs.2,80,57,991/- to Rs.2,28,35,471/-. He further requested that since these details were not submitted at the time of original adjudication, the case may be remanded to the original authority who can examine the details now being provided and decide the issue on merits. On query from the Bench regarding the interest payable for the intervening period, the learned counsel submitted that they undertake not to claim the interest.

3. Learned AR, on the other hand, reiterated the findings in the impugned order and submitted that in spite of various directions from the original authority, the appellant had not submitted the basic details required under Rule 5 of the Cenvat Credit Rules. The original authority had no option but to reject the claim. Even before the Commissioner (Appeals), the appellant did not bother to submit the details and kept on insisting that their refund claim should be sanctioned. He further submitted that it is only at the Tribunal stage that they are now submitting some calculation and it will be seen that they themselves have brought down the claim roughly from Rs.2.8 crores to Rs.2.2 crores. The learned AR further stated that from the fact that the details were not provided by them, no fault can be found either in the order of the original authority or in the order of the Commissioner (Appeals) and since the two orders are correct, the appeal may be dismissed.

4. We have considered the submissions of both the sides. It is not disputed that the basic information required for sanctioning of refund claim under Rule 5 was not submitted by the appellant either before the original authority or before the first appellate authority. These details are being submitted for the first time before this Tribunal. It is not possible for this Tribunal to examine the correctness or otherwise of the details. Keeping in view the overall facts and circumstances of the case as also in the interest of justice, we set aside the orders passed by the lower authorities and remand the matter back to the original authority. The appellants undertakes to submit all the details within a period of three months from the receipt of the order. The original authority will thereafter examine the claim and pass appropriate order in accordance with law. Since the appellant had not furnished the details before the original authority in the first instance, no interest will be payable on the amount sanctioned.

5. The appeal is allowed by way of remand to the original authority.

(Operative part pronounced in Court)

(Ramesh Nair) Member (Judicial) (P.K. Jain) Member (Technical)

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