Custom, Excise & Service Tax Tribunal
M/S. Nav Durga Steel Products vs Commissioner Of Central Excise on 31 January, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Excise Appeal No . 21 of 2011-SM
Excise Misc Application No. 58848 of 2013
[Arising out of Order-In-Appeal No. 131 /CE /Chd-I/2010 dated 10.9.2010 passed by Commissioner of Central Excise (Appeals), Chandigarh ]
For approval and signature:
Honble Ms. Archana Wadhwa, Member (Judicial)
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Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
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Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
Yes
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Whether Their Lordships wish to see the fair copy of the Order?
Seen
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Whether Order is to be circulated to the Departmental authorities?
Yes
M/s. Nav Durga Steel Products. Appellants
Vs.
Commissioner of Central Excise Respondent,
Chandigarh Appearance:
Shri Bipin Garg, Advocate for the Appellants Shri R K Mishra, DR for the Respondent Date of Hearing /Decision: 31.1.2014 ORDER NO . FO/ 50577 /2014-SM(Br) Per Ms. Archana Wadhwa:
The appellant is engaged in the manufacture of various excisable products falling under Chapter 72 of Central Excise tariff. During the period 2006-2007 to 2009-2010, they sometime discharged the duty out of Cenvat credit account and sometime by way of depositing cash or out of PLA. Their factory was ultimately closed in the year 2009 and they surrendered their excise registration on 8.8.09.
2. At the time of surrendering their registration, they were having closing balance of Rs.4,42,489/- in their Cenvat credit account. They filed the application dated 11.1.10 for refunding unutilized Cenvat credit of Rs.4,42,489/- dated 27.11.09. The show cause notice was issued on 21.12.09 seeking denial of refund claim filed by the applicant.
3. During the course of adjudication, the appellant took a stand that during the period involved, they had discharged their duty liability out of PLA even when they were having Cenvat credit in their Cenvat account. Said discharge of duty out of PLA was at the instance of Revenue. As such, they took a stand that after adjusting discharge of duty out of Cenvat credit account instead of paying the same in cash, the entire balance Cenvat credit accordingly would have been wiped out and there would have been no balance of the credit. As such, they submitted that in an essence they are seeking the refund of duty paid in cash.
4. The above contention of the appellant was not considered by the lower authorities who rejected the refund claim. Hence, the present appeal.
5. I have heard both the sides duly represented by Shri Bipin Garg, learned advocate appearing for the appellant and Shri R K Mishra, learned DR appearing for the Revenue.
6. There is no dispute about the fact that the appellants discharged their duty liability during the period 2006-2007 to 2009-2010 either by way of payment through Cenvat credit or also by way of cash. This might have resulted in accumulation of Cenvat credit. However, the payments made towards the duty in cash, were proper and appropriated payment at that point of time. The assessment in respect of same also stand finalized. As such, at the end of the day, when the appellant is closing its factory, it has claimed refund of payment made in cash during preceding financial year on the ground that the same should be adjusted against the available credit at the time of closure of the factory.
7. First of all, we are not aware as to whether such credit was also available at the relevant time when the appellants made the payment in cash. Secondly, the appellants having made the payments in cash without any protest, even when there was credit available at the relevant time, cannot be allowed to take U turn at the end of closure of their factory. And thirdly, the assessment having been finalized cannot be opened after a period of 4 to 5 years so as to allow the assessee to make a claim of adjustment of cash payment with the credit available. I also find that Tribunal in the case of Swaran Steel Industries vs CCE, Chandigarh reported as [2009 (245) ELT 483 (Tri-Del)] has held that there is no provision for cash refund of the unutilized Cenvat credit at the time of surrender of registration certificate on closure of unit.
7. In view of the foregoing, I find no merit in the appeal. The same is rejected.
(Dictated & pronounced in the open Court )
( Archana Wadhwa ) Member(Judicial)
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