Custom, Excise & Service Tax Tribunal
M/S Ambuja Cements Ltd vs Cce, Chandigarh-I on 26 July, 2017
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SCO 147-148, SECTOR 17-C, CHANDIGARH-160017 SINGLE BENCH COURT NO.1 Appeal No. E/1126,1127/2008 [Arising out of the Order-in-Appeal No. 187-188/CE/CHD/2008 dated 05.03.2008 passed by the CCE (Appeals), Chandigarh-I] Date of Hearing/Decision: 26.07.2017 For Approval & signature: Honble Mr. Ashok Jindal, Member (Judicial) M/s Ambuja Cements Ltd. Appellant Vs. CCE, Chandigarh-I Respondent
________________________________________________ Appearance Shri. Amrinder Singh, Advocate- for the appellant Shri. V.K. Tehran, AR- for the respondent CORAM: Honble Mr. Ashok Jindal, Member (Judicial) FINAL ORDER NO: 61363-61364 / 2017 Per Ashok Jindal:
The appellant is in appeal against the impugned orders wherein the refund claims filed by the appellants were rejected on the ground that the demand for which they filed refund claims has already been held against them.
2. The facts of the case are that the appellant is engaged in the manufacture of cement/clinker falling under Chapter 25 of the First Schedule of the Central Excise Tariff Act, 1985. They availed cenvat credit on inputs/capital goods captively consumed in mines being a cement manufacturer. The cenvat credit sought to be denied on the ground that the mines are not the factory of the appellant, therefore, inputs/capital goods were not used in the factory of the appellant, the cenvat credit sought to be denied by issuance of the show cause notice for the period July, 2001 to March, 2004. The matter was adjudicated by denying the cenvat credit and the demand was confirmed. Before filing the appeal before the Ld. Commissioner (A), the appellant paid the disputed the amount of cenvat credit under protest. The ld. Commissioner (A) adjudicated the matter and dismissed the appeal without appropriating of the amount deposited by the appellant under protest.
3. Further, for the period April, 2004 to September, 2004, the appellant reversed the cenvat credit under protest and intimated to the department. No proceedings were initiated against the appellant for appropriation of the amount paid under protest.
4. Later on, in the light of the decision of the Honble Apex court in the case of M/s Vikrarm Cements reported in 2006 (194) ELT 3(SC), wherein it has been held that the inputs/capital goods used in mines being a cement manufacturer are entitled for cenvat credit. In view of the said judgments, the appellant filed two refund claims before the authorities below and the same were rejected by the authorities on the ground that the appellant has not kept the issue alive, therefore, they are not entitled for refund claims. Aggrieved from the said orders, the appellant is before me.
5. As the issue involved in both the appeals is common, therefore, both the appeals are disposed off by a common order.
6. Heard the parties and considered the submissions in detail.
7. I find that the short issue involved in the matter is that whether the appellant is entitled to take refund claim of reversal of cenvat credit under protest which has not been appropriated at any stage or not?
8. In this case, it is admitted fact that the appellant reversed the cenvat credit under protest which was never appropriated by any authorities at any stage. In that circumstance, without appropriation of the said amount by the authorities below, the same was remained as deposit. Further, I find that in the light of the decision of the Honble Apex Court in the case of Vikram Cements (Supra), the appellant was not required to reverse the said amount. In that circumstances, the appellant is entitled for refund of the said amount.
9. The ld. AR heavily relied on the decision of this Tribunal in the case of M/s Ambuja Cements Limited vide Final order No. 53726/2016 dated 20.09.2016 to say that this Tribunal relying on the decision of M/s Prism Cement Ltd. Vide Final Order No. A/52158/2016-EX (DB) dated 14.06.2016, they are not entitled for refund claim.
10. I have gone through the said case and the facts of the case of Prism Cement Ltd. (Supra), the amount was paid under protest but the same was appropriated by the adjudicating authority, therefore, the facts of the said case are different from the case in hand. According, the case of Prism Cement Ltd. (Supra) the relianced by the Ld. AR has no relevance to facts of this case.
10. Further, I have gone through the Central Excise Rules. As per Rules 233(B), the procedure is laid down for appropriation of duty paid under protest. Admittedly, the amount paid under protest has not been appropriated at any stage in terms of Rule 233 (b) of the Central Excise Rules, 1944, therefore, the amount paid by the appellant under protest is a deposit with the department. In that circumstances, the appellant is entitled for refund claim of the amount in dispute.
With these terms, the impugned orders are set aside. The appeals are allowed with consequential relief, if any.
(Dictated and pronounced in the open court) Ashok Jindal Member (Judicial) rt 1 E/1126,1127/2008