Custom, Excise & Service Tax Tribunal
M/S.Acc Ltd vs Commissioner Of Central Excise, ... on 16 November, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Appeal No. E/687/09
(Arising out of Order-in-Appeal No.37/CE/BBSR-II/2009 dated 07.09.2009 passed by the Commissioner(Appeals) of Central Excise, Customs & Service Tax, Bhubaneswar.)
M/s.ACC Ltd.
Applicant (s)/Appellant (s)
Vs.
Commissioner of Central Excise, Customs & Service Tax, BBSR-II
Respondent (s)
Appearance:
Shri C.R.Das, Advocate for the Appellant Shri S.Mukhopadhyay, Supdt.(AR) for the Revenue CORAM:
Honble Shri P.K.Choudhary, Member(Judicial) Date of Hearing :- 16.11.2016 Date of Pronouncement :- 02.01.2017 ORDER NO.FO/A/75001/2016 Per Shri P.K.Choudhary.
The relevant facts of the case in brief are that the appellants are engaged in the manufacture of cement. The reversal of Cenvat Credit of Rs.15,65,966/- vide entry Sl.No.181 dated 01.09.2004 with respect to Explosives used in the mines after receipt of show cause notice dated 26.06.2004. Thereafter, the Honble Supreme Court in the case of Vikram Cement vs. Commissioner of Central Excise, Indore [2006 (194) ELT 3(SC)] held that the assessee is entitled to avail credit on explosives used in the captive mines. The appellant filed a refund claim on 24.02.2009 for Rs.15,65,966/-. A show cause notice dated 15.04.2009 was issued proposing to reject the refund claim in terms of the provisions of Section 11B of the Central Excise Act, 1944. The adjudicating authority held that the claim for refund/credit of Cenvat credit of the appellant cannot be acceded and hence rejected. By the impugned order, Commissioner(Appeals) upheld the adjudicating order.
2. The ld.Advocate on behalf of the Appellant submitted that the amount was paid by mistake and therefore, refund claim cannot be rejected. Limitation under section 11B of the said Act would not apply. He relied upon the following case laws:
a) Gujarat Engg. Works v. CCE, Ahmedabad-II [2013 (292) ELT 547 (Tri.-Ahmd.)]
b) CCE, Bangalore-III v. Motorola India Pvt.Ltd.
[2006 (206) ELT 90(Kar.)]
c) Indo-Nippon Chemicals Co.Ltd. v. UOI [2005 (185) ELT 19 (Guj.)]
d) CCE, C & ST, Bangalore v. Stumpp, Scheule & Somappa P.Ltd.
[2015 (319) ELT 146 (Tri.-Bang.)]
e) ICMC Corporation Ltd. v. CESTAT, Chennai [2014 (302) ELT 45 (Mad.)]
f) Krishnav Engineering Ltd. v. CESTAT [2016 (331) ELT 391 (All.)]
3. I find that the Appellant deposited the amount of duty as per show cause notice, which was never challenged in appeal and the amount was not deposited under protest. This fact was not disputed by the Appellant at any point of time. As the amount was deposited as proposed in the show cause notice, and it would come within the purview of Section 11B of the Act, 1944. Accordingly, the limitation prescribed under section 11B would be invoked.
4. The Appellant filed the refund claim beyond the period stipulated in Section 11B of the Act. Hence, the authorities below rightly rejected the refund claim. It is not the case of the suo motu reversal of credit and therefore, the case laws relied upon by the appellant would not be applicable. In view of the above discussion, I do not find any reason to interfere with the order of the Commissioner(Appeals).
5. Accordingly, appeal filed by the appellant is rejected.
(Pronounced in the open court on 02.01.2017.)
SD/
(P.K.CHOUDHARY) MEMBER(JUDICIAL)
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Appeal No.E/687/09