Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, Nashik vs Ganesh Agro Steel Inds on 15 November, 2015
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
Appeal No.
E/691/10
- Mum
(Arising out Order-in-Appeal No. AKP/68/NSK/2010 dated 10.03.2010 passed by the Commissioner of Central Excise (Appeals), Nashik)
For approval and signature:
Honble Mr. S.S. Garg, Member (Judicial)
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 No CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy Yes
of the Order?
4. Whether Order is to be circulated to the Departmental Yes
authorities?
Commissioner of Central Excise, Nashik
Appellant
Vs.
Ganesh Agro Steel Inds.
Respondent
Appearance:
Shri V.K. Shastri, AC (AR) for the appellant Shri Ashok Singh, Advocate for the respondent CORAM:
Honble Mr. S.S. Garg, Member (Judicial) Date of hearing : 11.09.2015 Date of decision : 15.11.2015 O R D E R No:..
This appeal is directed against Order-in-Appeal No. AKP/68/NSK/2010 dated 10.03.2010 passed by the Commissioner of Central Excise (Appeals), Nashik upholding the decision of the Adjudicating Authority sanctioning the refund in favour of respondent by way of credit to their CENVAT Credit account.
2. Briefly the facts of the case are the respondent is engaged in the manufacture of TMT bars falling under Chapter 72 of the First Schedule of CETA 1985. The respondent filed a refund claim amounting to `8,44,021/- on 30.04.1997 under Section 11B of Central Excise Act, 1944 for deemed credit on the basis of invoice/bills. The respondent was not allowed deemed credit for the period 24.07.1994 to October 1994 on the ground that they had crossed the clearance value of `75 lakhs prevalent at that time for SSI exemption. The Additional Commissioner disallowed the credit and on appeal, the ld. Comm.(A) Pune vide order dated 27.02.1997 set aside the Order-in-Original and allowed the credit to the respondent. For the subsequent period from 20.10.1994 to 31.03.1995 refund claim of respondent was rejected alleging that credit was being claimed six months from the date of receiving material which is deemed proper under Rule 57G of Central Excise Rules, 1944. Since the refund claim was filed after more than 2 years, the same was rejected being time barred under Section 11B of the Act, vide order dated 04.12.1997. Being aggrieved, the respondent filed appeal before the Comm.(A), Nashik who rejected the appeal and upheld the Order-in-Original. Thereafter respondent filed appeal before this Tribunal and this Tribunal vide order dated 08.11.2007 set aside the Order-in-Appeal and allowed the appeal by way of remand to Adjudicating Authority to reconsider the issue afresh after considering the documentary evidence on record. Thereafter the Adjudicating Authority after hearing the case afresh allowed the refund of the respondent. Thereafter the revenue filed appeal before the Comm.(A) raising the grounds of limitation as well as bar of unjust enrichment. The ld. Comm.(A) in view of this Tribunal order in the case of CCE vs. Anjani Synthetics Ltd. 2001 (132) ELT 688 which was followed in the case of Sanghi Textiles Ltd. 2006 (206) ELT 854, held that in the case of refund of deemed credit time bar as stipulated under Section 11B of the Central Excise Act, 1944 will not apply. Further, the refund observation of Comm.(A) is reproduced herein:
The department has argued that as per erstwhile Rule 57G of Central Excise Rules', 1944, the refund was required to be claimed within 6 months from the date of receipt of material. I have gone through Rule 57G prevalent in the year 1994-95, for which the refund claim pertains. I find that as per the said Rule, time limit of 6 months, for claiming refund, as claimed by the department was not prescribed. It was only vide Notification No. 28/95 - CE(NT) dated 29.06.1995,the 9th Amendment to Central Excise Rules, was carried out which stipulated that manufacturer shall not .take credit after six months from the date of issue of any of the documents specified in' the said rules. The relevant amendment in para 4 to Rule 57 G is reproduced as under: -
Central Excise Rules 9th Amendment
4. in the said rules, in rule 57G, in sub-rule (2),
(i) after the first proviso, the following proviso shall be inserted, namely:-
"Provided further that the manufacturer shall not take credit after six months of the date of issue of any of the documents specified in the first proviso to this sub-rule"
These Rules were introduced w.e. f 29.06.1995. The claim to avail modvat credit in the instant case pertains to the period 20.10.1994 to 31.03.1995. Therefore, the argument of the department that as per Rule 57 G of Central Excise Rules, 1944, refund was required to be claimed within six months from the date of the receipt of the material, does not survive. Clearly the claim for availment of deemed credit is for the period prior to the amendment of Rule 57G, when no time limit was prescribed for taking credit.
(ii) Department had issued SCN dated 13.06.1997 relevant to the instant case proposing to reject the claim of availment of deemed credit on the ground that such claim has been filed after six months period as stipulated in Rule 57 G of Central Excise Rules, 19,44. As I have discussed in pre-para the Rule 57 G during the period for which the claim of availment of credit pertains did not have a restriction of six months for availment of credit. Therefore, to reject a claim of availment of deemed credit under Rules 57 G on ground of time bar which did not exist during the relevant period is not justified. In fact as no time limit was prescribed during 20.10.1994 to 31.03.1995, for which the credit pertains, the respondent ought to have taken credit without applying for same before the jurisdictional AC / DC.
3. Further while dealing with the issue of unjust enrichment the ld. Comm. in para 7.3 of his order in appeal as observed as under:
7.3 Issue of unjust enrichment:- The department has stated that there are no findings on the issue of unjust enrichment in the 010 and have relied upon the judgement of Honorable Supreme Court in the case of Mafatlal Industries reported in 1997(89) ELT 247(SC), wherein it is held that bar of unjust enrichment is applicable in all cases. They also relied upon the decision .in the case of UOI Vs. Solar Pesticides reported in 2000(116) EL T (SC), wherein it has been held that duty paid on raw- material when added to price of finished goods, incidence of duty considered to have been passed. In this regard, I find that the issue of unjust enrichment was not raised in the SC N issued to the respondent. SCN was issued under F.No. V-Ch-72(18)/5-33/97 dated 13.06.1997 in which respondent was called upon to show cause to the AC, Nashik-II, Dn. as to why their claim should not be rejected as time barred. Respondent was not called upon to show cause as to why the claim should not be rejected on the issue of unjust enrichment. Therefore, .the appeal in the instant case has traveled beyond the scope of Show cause notice, and hence, not maintainable. I place my reliance on the following case laws of the Honorable Tribunal:-
(i) CCE, Pondicherry Vs. White House Cotton Industries Ltd. reported in 2008(226) EL T 418(Tri-Chennai) wherein it was held that "Appeal by department - Show cause notice, scope of - Appeal on the ground. beyond the scope of show cause notice not maintainable - Section 35C of Central Excise Act, 1994.
4. Further the commissioner has also observed in para 7.6 as under:-
7.6 I would also like to mention here that on an identical issue and for the same period, in the case of Mis. Shiva Steel Rolling Mills, the then Commissioner (Appeals), Nashik, vide OIA No. CEX.XI/JMJ/144/916/NSK/APL/2003 dated 25.03.2003, had allowed deemed credit under Rule 57G. M/s. Shiva Steel Rolling Mills were also issued an identical SCN by the jurisdictional AC on the issue of "(i) Subject refund claim is on tile basis of OIA No.37/97 dated 27.02.1997 which is pertaining to the period 24.07.1994 to October 1994 whereas the subject claim is for the period October., 1994 to November, 1995 is not justifiable and (ii) The Modvat credit is being claimed after six months from the date of receipt of materials per Rule 57G of the CER, 1944, whereas the Modvat credit of duty should be taken within six months." It was verified from the Review section of Nashik Commissionerate whether the said OIA was accepted in review or an appeal was filed. Superintendent(Review) vide communication dated 04.03.2010, informed that the said OIA has been accepted by the department on 22.09.2003. It is a settled principle that on an identical issue, two different stands cannot be taken when an earlier decision has not been appealed against. I place may reliance on the following judicial pronouncements:-
(i) Raman Boards vs. CCE, Delhi-Ill - 2009(243) E. L. T. 550(Tri-Del.) wherein it is held that "Department not entitled to take discriminatory stands on same product manufactured by two different assessees or by same assessee from two different units or at two different times"
5. I have heard the ld. Counsel for both sides and perused the impugned order. The ld. AR has submitted that the present appeal pertains to regular refund claim and not of availment of deemed credit. In view of this categorical finding of the Commissioner (Appeals) I do not find any force in the argument of the ld. AR. I find the ld. Counsel for the respondent supported the finding of the Commissioner who has dealt with the issue in quite detail and has written finding on the basis of the judgments delivered by the Tribunal. I find that the decision of the Tribunal in the case of Anjani Synthetics Ltd. (supra) and Sanghi Textiles Ltd. (supra) squarely applies to the facts of the present case and the ld. Comm. has considered the same. I do not find any infirmity in the decision of the Commissioner (Appeals) and I uphold the same by dismissing the appeal of the revenue. Therefore, the appeal of the revenue is dismissed.
(Pronounced in Court on .) (S.S. Garg) Member (Judicial) //SR 8 e691-10