Custom, Excise & Service Tax Tribunal
Delhi I vs Technip India Ltd on 12 September, 2018
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
West Block No.2, R. K. Puram, New Delhi
COURT -II
Date of hearing/ Decision: 12.09.2018
Appeal No. ST/51564/2018-SMC
[Arising out of Order-in-Appeal No. OIA-157/CENTRAL-TAX/APPL-
II/DELHI/2017 dated 28/02/2018 passed by COMMISSIONER OF CGST &
CENTRAL EXCISE-DELHI - I (Appeal)]
C.G.S.T-DELHI I Appellant
Vs.
TECHNIP INDIA LTD Respondent
Appearance:
Sh. P. Juneja, DR for the appellant Sh. R. Krishnan, Advocate for the Respondent Coram:
Hon'ble Mr. V. Padmanabhan, Member (Technical) Final Order No._52941/2018_ Per: V. Padmanabhan
1. The present appeal filed by Revenue is against the Order-in-Appeal No. 157/2017 dated 28/02/2018.
2. The respondent is engaged in the manufacture of machinery, plants and equipments falling under Chapter 84 of the Central Excise Tariff. The dispute pertains to the period October and November, 2015, when the respondent claimed refund of the Cenvat Credit under Rule 5 Cenvat Credit Rules, 2004. The refund claim was allowed by the Original Authority in an amount of Rs. 17,31,317/- but Revenue was of the view that such refund claim was paid in excess and challenged the Original Authority's order by filing appeal before the Commissioner (Appeals). Vide the impugned order, the Commissioner (Appeals) upheld the Original Authority's order. Hence the present appeal has been filed by the Revenue.2
ST/51564/2018-SMC
3. Arguing the grounds of appeal, the Ld. DR, Shri P. Juneja submitted that the refund appears to have been granted in excess particularly in view of the fact that the total value of goods exported amounts to Rs. 7,13,584/- on which the duty payable comes to only Rs. 89,198/-. As against this, amount of Rs. 17,315/- has been allowed as refund. He further submitted that the admissible refund claim under Rule 5 of the Cenvat Credit Rules, 2004 cannot be more than the duty payable on export goods or the value of such goods.
4. Heard Shri R. Krishnan, Ld. Advocate on behalf of the respondent. He justified the findings of the Commissioner (Appeals) in the impugned order. He submitted that the refund has been sanctioned after duly calculating the same on the basis of the formula prescribed for sanction of such refund under Rule 5 of the Cenvat Credit Rules, 2004. The Revenue is not justified in imposing the condition that the amount of refund cannot be more than the duty payable on export goods, since there is no such stipulation in Rule 5 of the Cenvat Credit Rules, 2004. He submitted that the impugned order may be sustained.
5. After hearing both sides and perusal of record it is seen that the dispute pertains to claim of refund claimed by the respondent under Rule 5 of the Cenvat Credit Rules, 2004. This Rule provides for granting of refund of Cenvat Credit which is unutilized because of various circumstances including export of goods. The rule prescribes that the refund claim, is to be filed once in a quarter and is to be calculated on the basis of the formula:-
The total value of goods exported during the quarter _________________________________________ X Net Cenvat Credit availed during the period The total turnover during the quarter 3 ST/51564/2018-SMC
6. After going through the record I find that the refund has been sanctioned by determining the same in terms of the above formula, for the quarter for which such refund claim have been filed. It is also seen that the condition which is sought to be imposed by the Revenue for restricting such refund claim to an amount which is equal to be duty payable on export goods, is without justification, in the absence of any such restricting clause in Rule 5 of the Cenvat Credit Rules, 2004.
7. In the result, there appears to be no infirmity in the order passed by the Commissioner (Appeals). The same is sustained and the appeal filed by Revenue is rejected.
(Order dictated & pronounced in the open Court) (V. Padmanabhan) Member (Technical) Rekha