Sandoz Pvt. Ltd vs Commissioner Of Central Excise

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,WEST ZONAL BENCH AT MUMBAI

COURT No. II

APPEAL No.E/85304 & 85305/15

(Arising out of Order-in-Appeal No.CD/47&48/BEL/2014 dated 19/11/2014 passed by Commissioner of Central Excise (Appeals), Mumbai zone-II)

For approval and signature:

Honble Mr. Anil Choudhary, Member (Judicial) Honble Mr. Raju, Member (Technical)

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? ========================================

Sandoz Pvt. Ltd., Appellant Vs. Commissioner of Central Excise, Respondent Belapur

Appearance: Shri.Prakash Shah, Advocate for appellant Shri. V.K.Agarwal, Addl. Comm. (AR) for respondent CORAM: Honble Mr.Anil Choudhary, Member (Judicial) Honble Mr. Raju, Member (Technical)

Date of Hearing : 13/08/2015 Date of Decision : 13/08/2015

ORDER NO

Per: Raju

1. The appellants are manufactures and registered as EOU. They are engaged in exports as well. They filed a refund claim under rule 5 of CENVAT credit rules for a refund of accumulated credit. The conditions for filing refund claim are notified under the notification 5/2006 CE(NT). One of the conditions specified in the notification namely condition (h) prescribes that the amount that is claimed as a refund under rule 5 shall be debited by the claimant from his CENVAT account at the time of making the claim.

2. The appellants filed a claim under rule 5 on 25. 04. 2013. However they did not debit the amount claimed from the CENVAT account at the time of filing the refund claim. They however debited the amount on 13.08.2013. The refund claim was rejected solely for the reason that the appellants did not debit the amount in their CENVAT account at the time of filing the claim. It is an admitted fact that the amount claimed as refund was debited prior to issue of show-cause notice, as per report submitted by the learned AR dated 21/05/2015 received from the jurisdictional Assistant Commissioner. It is further evident that even from the date of debit, the claim is not time barred. The Commissioner (appeals) also denied the refund claim on the same grounds. He further stated that the appellants did not submit any documentary proof evidencing debiting of the said amount on the later date.

3. The appellants are in appeal before us against the said order of Commissioner (appeals). The short question to be decided is if the refund can be granted to the appellants when they have debited the amount not on the date of filing refund claim but on a later date. It is seen that the conditions prescribed in the notification having met although on a later date. The failure to debit on the date of filing the refund claim is not such a lapse that it would debar the appellants from the refund. On the day of debiting the CENVAT account they have fulfilled the conditions of the notification. In that event they become entitled to refund on that date. In view of above the impugned order is set aside, the appeal is allowed with consequential benefit. The matter is remanded for the limited matter of verification of arithmetical accuracy of refund. The same is directed to be completed within a period of 30 days from the receipt of this order and refund issued.

(Pronounced in Court)

(Anil Choudhary) Member (Judicial) (Raju) Member (Technical)

pj

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