Customs, Excise and Gold Tribunal - Delhi
Toroid India Pvt. Ltd. vs C.C.E. on 4 January, 2006
Equivalent citations: 2006(108)ECC100, 2006ECR100(TRI.-DELHI), 2006(199)ELT135(TRI-DEL)
ORDER M.V. Ravindran, Member (J)
1. This appeal is directed against the order-in-appeal dt.15.3.04 wherein the refund claim of the appellants have been rejected on the ground of time bar.
2. The relevant facts arise for consideration are that the appellants are 100% EOU and are engaged in the manufacture of transformers. They procured duly paid Enameled Wire from their suppliers and consumed the same in the manufacture of transformers which they exported. The appellants preferred a refund claim of the duty paid on the Enameled Wire under Section 11B of the Central Excise Act, 44 on the ground that as 100% ECU, they are eligible to get the inputs without payment of duty, but having paid the duty as purchasers, they are eligible for such refund of excise duty paid on the inputs. A SCN was issued to them seeking to reject the refund claim on two grounds i.e. on the ground of time bar and for not following the procedure as laid down under Rules 156A and 173N of Central Excise Rules, 44 and notification No. 1/95. The appellants contested a SCN on various grounds. The adjudicating authority did not accept contentions of the appellants and rejected the refund claim filed by the appellants. On an appeal, the Commissioner(Appeals) has also rejected the refund claim on the ground that the said refund claim have been filed after the expiry of six months from the relevant date as laid down under Section 11AB. Hence this appeal.
3. Ld. Advocate for the appellants submits that it is a fact that they are EOU and they have consumed the duty paid inputs for export of their final products. He submits that he is covered by the provisions of Section 11B(1) read with explanation to the said section and most specifically explanation B(i) of the said explanation. He further submits that if they would follow the proper procedure of getting the duty paid inputs under Notification 1/9, they would not have been required to pay any duty but for the exigencies of export, they have to pay duty to the suppliers. He fairly submits that, this point that their case is covered under Explanation (B) to Section 11B was not taken before the adjudicating authority.
4. Ld. DR on the other hand submits that the appellants are working under EOU and they should have known the procedures to be followed for availing the benefits of non-payment of duty on the inputs. He further submits that the appellants' case is not at all covered under Section 11B for the simple reason that they choose to pay the duty on the inputs instead of waiting for getting the CT 3 certificate from the Deptt. He further submits that their case of claiming the refund of duty paid on the inputs could get covered under Sub-clause (e) to Explanation B to Section 11B and as a purchaser their refund claim is clearly time barred.
5. Considered the submissions made by both sides and perused the records. I find that the appellants in the application for refund claim had clearly mentioned that they are 100% EOU and that they are eligible for importing the raw-materials without payment of duty for use in the goods which are exported by them. They have also mentioned in the refund claim that they have had used the inputs i.e. enameled wires purchased from the supplier in transformers which were exported. It is not in dispute that they are exporting the transformers from their EOU. I find that the benefit of getting the duty paid inputs free of duty for use in the EOU is available to the appellants. But for the fact that they have not waited for the receipt of the CT 3 certificate from the Deptt. could not be considered as a major hurdle for them for nor claiming the refund claim.
6. I find that refund claim under Section 11B is in respect of refund of any duty of excise. It is not at all disputed that the refund claim filed by the appellants before the authorities was in respect of duty of excise paid on the enameled wire. Since the provisions of Section 11B are applicable and attracted naturally, the explanation given to Section 11B would also get attracted in this case and I find that for the purpose of calculating relevant date for the refund claim. Explanation B talks about excisable material used in the manufacture of goods exported. If explanation 'B' (a)(i) is read with 11B(1), the refund claim of the applicants would seen to be within time. But since this issue was not taken up by the appellants before the lower authorities and nor there are any records produced before me about the consumption of the said wires for the purpose of export of the transformers, it would be in the interest of justice to remand the matter back to the adjudicating authority to consider the refund claim afresh, after considering the evidences that may be putforth by the appellants in respect of co-relation of the consumption of the duty paid inputs to that of goods exported by them and re-adjudicate the matter afresh in light of above direction. The appeal is allowed by way of remand.
(Order dictated in the open Court).