M/S. Dcm Shriram Consolidated Ltd vs C. C.E. & S.T., Jaipur-I

[Arising out of Order-In-Appeal No. 97/(VC)CE/APPL/JPR-I/2013 dated: 21/27.08.2013 passed by Commissioner (Appeals) Jaipur-I]

For approval and signature:

Hon'ble Mr. S.K. Mohanty, Member (Judicial)

1 Whether Press Reporters may be allowed to see 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 of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

M/s. Dcm Shriram Consolidated Ltd. ...Appellant

Vs.

C. C.E. & S.T., Jaipur-I Respondent

Appearance:

None appeared for the Appellant

Mr. G R Singh, DR for the Respondent

CORAM:

Hon'ble Mr. S.K. Mohanty, Member (Judicial)

Date of Hearing. 07.07.2015

Final Order No. 54097 /2015_

Per S K Mohanty:

This appeal is directed against the impugned order dated 27.08.2013 passed by the Commissioner of Central Excise (Appeals), Jaipur, upholding rejection of refund claim in the adjudicating order on the ground of limitation.

1.1 The brief facts of the case are that the The appellant is engaged in the manufacture of Cement, where grinding Media is used as an input. During the disputed period, the appellant had availed Modvat Credit of Central Excise duty paid on inputs i.e. Grinding Media, used in manufacture of cement. Taking of modvat credit by the appellant was disputed by the Department on the ground that grinding media is not an input and the same is a machinery item. Pursuant to the adjudication order dated 11.12.1997, the appellant had reversed the modvat credit amount. The said adjudication order was appealed against by the appellant and the Tribunal vide order dated 1.10.1993 has allowed the appeal filed by the appellant, holding that grinding media is an input and modvat credit will be available to the appellant. Pursuant to the favorable order of the Tribunal, the appellant had filed the refund application on 30.06.1994, claiming refund of modvat credit already reversed in its books of accounts. However, the said refund application was returned by the Department to the appellant on various grounds. Thereafter, the appellant had filed the refund application again on 19.10.2011, consequent upon favourable order passed by the joint Commissioner of Central Excise. Filing of this refund application was considered by both the authorities as time barred. Hence this present appeal is before the Tribunal.

2. None appeared for the appellant. The Respondent represented through, Sh. G R Singh, the Ld. DR.

3. It is an admitted fact on record that the refund application was initially filed by the appellant on 30.06.1994. However, the same was returned by the Central Excise Department to the appellant on the ground that the order of the Tribunal in allowing the Modvat Credit on Grinding Media has not been accepted by the Department and the appeal is pending before the Honble High Court. With regard to the issue, as to whether, Grinding Media should be considered as input for manufacture of cement, the adjudication proceedings initiated by the Department were dropped by the Joint Commissioner vide order dated 13.05.2009. Consequent upon the favourable order, the appellant pursued the matter with the Department for sanction of refund. Since, the request was not considered favourably, the appellant has filed the refund application once again on 19.10.2011. The authorities below took the view that since the order was passed on 13.05.2009 and the refund application was filed on 19.10.2011, the same is barred by limitation of time as provided under Section 11B of the Central Excise Act, 1944.

4. There was no necessity for filing the fresh refund application by the appellant on 19.10.2011 with regard to the same refund amount, which was initially filed on 30.06.1994, which was returned by the Department on the ground that the Tribunals order is the subject matter of dispute before the Honble High Court. Perusal of the Provisions of Section 11B ibid reveals that no provisions exist therein to return the refund application to the assessee. Since, the ground of filing refund application on 30.06.1994 is same in the application filed on 19.10.2011, in my considered view, application filed on 30.06.1994 should be constructed as proper application for the purpose of computation of limitation of time. Since, the initial application was filed within the statutory time frame, in my opinion, there is no delay in filing the subsequent application on 19.10.2011, which was in confirmation to the earlier application dated 30.06.1994, involving the same set of facts.

5. In view of the above, I do not find any merit in the impugned order. Therefore, the same is set aside and the appeal is allowed in favour of the appellant.

(Dictated and pronounced in open court)

(S. K. Mohanty) Member(Judicial)

Neha

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