Customs, Excise and Gold Tribunal - Mumbai
Commissioner Of Cen. Excise vs Sterlite Industries India Ltd. And ... on 4 February, 2005
Equivalent citations: 2005(183)ELT369(TRI-MUMBAI)
ORDER
Jyoti Balasundaram, Vice President
1. The above applications have been filed for stay of operation of the orders of the Commissioned Appeals) who has allowed the claim of the assessees for refund of balance unutilised credit and directed the Dy.Commissioner to re-calculate the balance of credit and allow refund in cash, under the provisions of Rule 57AC(7) of the erstwhile Central Excise Rules, 1944.
2. We have heard both sides. The respondents herein are engaged in the manufacture of copper cathode and copper rod. They filed two claims for refund of Rs. 18,17,67,645/- and Rs. 52,54,06,510/- on 26.9.01 and 31.1.03 respectively under the provisions of Rule 5 of the Cenvat Credit Rules 2002 on the ground that they had exported goods during the period April, 2001 to August, 2001 and May 2002 to December 2002 for which copper anode was used as raw material and they were unable to utilize credit of duty paid on inputs allowed under erstwhile Rule 57AU of the Central Excise Rules as the goods had been exported. Show cause notices were issued on 11.2.2002 and 18.2.2003 proposing rejection of refund claims; and the Asstt.Commissioner vide his order dated 7.3.02 and the Dy.Commissioner vide his order dated 7.6.02 rejected the claims on the grounds, interalia, the respondents have not tried to utilize the credit lying in their Cenvat Account for domestic clearance and export under claim for rebate by grossly undervaluing their export product. The Commissioned Appeals) allowed refund of the modvat credit accumulated; the Department filed appeals to the Tribunal which, vide its order No. A-1106-1107/WZB/04/C.III dated 10.9.04, remanded the case to the Commissioner(Appeals) to re-determine the facts and pass orders. The Bench held that the objection of the Department as to the input/output valuation cannot be the ground for rejecting the refund. The aspect of inability of the assessees to utilize accumulated Cenvat credit availed on inputs which have actually gone into manufacture of exported goods alone, in the normal course of clearance of finished goods, was directed to be verified. On remand, the Commissioner(Appeals) passed the present impugned orders directing refund in cash of balance unutilised credit.
3. We do not find any prima facie force in the argument of the ld.SDR for stay, in the light of the language of Rule 57 AC(7) which provides that -
"where any inputs are used in the final products which are cleared for export under bond or used in the intermediate product cleared for export, the Cenvat credit in respect of the inputs so used shall be allowed to be utilized by the manufacturer towards payment of duty of excise on any final product cleared for home consumption or for export on payment of duty and where for any reason such adjustment is not possible, the manufacturer shall be allowed refund of such amount ........"
Notification No. 35/2000 prescribed certain safeguards and conditions subject to which refund shall be permitted. Condition No. 5 which is relevant, provides that refund shall be allowed only in those circumstances where the manufacturer is not in a position to utilize the credit of duty paid on inputs allowed under Rule 57AB against goods exported during the quarter or month to which the claim relates. (emphasis supplied) The respondents have satisfied us that they were not in a position to utilize the credit of duty paid on inputs against goods exported during the particular quarter/quarters covering the period of refund. There is also no ground to the contrary in the appeals before us. We, therefore, hold that no prima facie case for stay of operation of the orders of the Commissioner (Appeals) has been made out by the Revenue.
4. The stay applications are hereby rejected.
5. Appeals to be heard on 10.3.05.
(Dictated in Court)