Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, Nagpur vs Morarji Brembana Ltd on 18 August, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. I APPEAL No. E/1165/05-Mum (Arising out of Order-in-Appeal No. SVS/23/NGP-II/2005 dated 20.1.2005 passed by Commissioner of Central Excise (Appeals), Nagpur) For approval and signature: Honble Mr. M.V. Ravindran, Member (Judicial) and Honble Mr. C.J. Mathew, 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 :
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?
====================================================== Commissioner of Central Excise, Nagpur Appellant Vs. Morarji Brembana Ltd. Respondent Appearance:
Shri Ashutosh Nath, Assistant Commissioner (AR), for appellant Shri Mehul Jiwani, C.A., for respondent CORAM:
Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical) Date of Hearing: 18.8.2016 Date of Decision: 18.8.2016 ORDER NO Per: M.V. Ravindran This appeal is directed against order-in-appeal No. SVS/23/NGP-II/2005 dated 20.1.2005 and is filed by the Revenue.
2. Heard both sides and perused the records.
3. The issue involved in the case in hand is regarding refund of AED filed by the respondent for the period 2002-03. The adjudicating authority has denied the refund on the grounds that the credit availed of AED (GSI) taken by the respondent would have remained unutilized even if the goods were not exported. It is the case of the Revenue that the unutilized credit for which the refund has to be sanctioned, needs to be correlated to the quantum of export of the goods.
4. We are unable to accept the Revenues contention as articulated by the learned departmental representative. We find that identical issue in respect of the very same assessee was argued before this bench in appeal No. E/3407/03 and the Bench, vide order No. A/1896/C-III/SMC/WZB/05, allowed the appeal and held that refund has to be granted of the unutilized credit. This order of the Tribunal was challenged by the Revenue in Central Excise Appeal No.40 of 2006, which was dismissed by the Honble High Court of Bombay on 12.10.2010.
5. In view of the foregoing that in the respondents own case, the issue has attained finality, we hold that the impugned order is correct and does not require any interference.
6. The impugned order is upheld and the appeal is dismissed.
(Pronounced in Court) (C.J. Mathew) Member (Technical) (M.V. Ravindran) Member (Judicial) tvu 1 3