Custom, Excise & Service Tax Tribunal
M/S Shamco Plastic Pvt Ltd vs Commissioner Of Central Excise on 26 February, 2016
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Zonal Bench, Ahmedabad -ooOoo- Appeal No. : E/10516/2013 [ Arising out of OIA-SRP/247/VAPI/2012-13dtd 5.2.2013 passed by Commissioner of Central Excise, CUSTOMS (Adjudication)-VAPI ] M/s Shamco Plastic Pvt Ltd - Appellant(s) Vs Commissioner of Central Excise, CUSTOMS (Adjudication)-VAPI - Respondent (s)
Represented by :
Appellant(s) : Shri M A Patel, Consultant Respondent (s) : Shri N Satwani, Authorised Representative For approval and signature :
Mr. P.K. Das, Hon'ble Member (Judicial) 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3 Whether their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes CORAM :
Mr. P.K. Das, Hon'ble Member (Judicial) Date of Hearing / Decision : 26/2/2016 ORDER No. A/10138 / 2016 dtd 26/2/2016 Per : Mr.P.K. Das, Heard both sides an perused the records.
2. The appellant filed this appeal against rejection of refund clam of Rs 1,57,879/-. During the period from 6.12.2007 to 15.12.2007 and 5.8.2008 to 8.8.2008, the appellant defaulted to discharge the monthly payment of duty under Rule 8(3) of the Central Excise Rules 2002. The appellant paid amount from the Cenvat account during the default period. A show cause notice was issued to the appellant proposing to pay the said amount by cash. The appellant paid the amount from PLA and filed the refund claim of the amount on Cenvat Credit. The Ld Authorised Representative for the Revenue submits that the Credit was reversed in 2007 and the refund claim was filed in 2009 barred by limitation.
3. There is no dispute that the appellant paid the amount twice. The Tribunal in the case of Kansai Nerolac Paints Ltd Vs CC (Imp), Mumbai 2014(300)ELT.255. (Tri Mum) on an identical situation allowed the refund even refund application was filed beyond the period of 6 months. The relevant portion of the same is reproduced below:
4.?I have gone through the facts as well as perused the records.
5.?It is an admitted fact that the duty payable by the appellant has been paid. The excess duty paid was not required to be paid by the appellant. Therefore the same cannot be treated as duty. As held by this Tribunal in the case of Shankar Ramchandra Auctioneers - 2010 (19) S.T.R. 222 (Tri.-Mum.) wherein it was held that the excess amount paid erroneously as duty which was not required to pay, there is no bar to return of such amounts. Therefore, the provisions of Section 11B of Central Excise Act, 1944 are not applicable. Relying on the said decision, I hold that the provisions of Section 11B ibid are not applicable to the facts of this case. Therefore not filing the refund claim in time cannot be the reason for denying the claim as bar of limitation is not applicable to this case
4. In the present case, there is no dispute that the amount was paid twice. It is also noted that the Honble Gujarat High Court, following the earlier decision, in the case of Precision Fasterns Ltd Vs CCE 2015(316)ELT.595 (Guj) held that the words without utilising cenvat credit in Sub Rule 3(A) of Rule 8 of the Central Excise Rule 2002 shall be rendered invalid. So the appellant rightly reversed cenvat credit during the relevant period from Cenvat account. Despite the appellant paid the amount in March 2009 in cash as pre-deposit is liable to be refunded. It is a clear case of refund of double payment of duty should not be rejected.
5. In view of the above discussion, the impugned order is set aside. The appeal filed by the appellant is allowed.
(Dictated and pronounced in the Court) (P.K. Das) Member (Judicial) swami ??
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