Custom, Excise & Service Tax Tribunal
M/S Themis Medicare Limited vs Commissioner Of Central Excise on 9 December, 2016
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Zonal Bench, Ahmedabad -ooOoo- Appeal No. : E/934-937/2010 Arising out of OIA-AKP/322-325/DMN/VAPI-I/2009-2010 dt 23.2.2010 Passed by Commissioner of Central Excise, Customs and Service Tax (Appeals) -DAMAN M/s Themis Medicare Limited - Appellant(s) Vs Commissioner of Central Excise, Customs and Service Tax-DAMAN - Respondent (s)
Represented by :
Appellant(s) : Shri Vinay Kansara, Advocate Respondent (s) : Shri L Patra, Authorised Representative For approval and signature :
Dr. D.M. Misra, 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? 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 :
Dr. D.M. Misra, Hon'ble Member (Judicial) Date of Hearing / Decision : 09/12/2016 ORDER No. A/11981-11984/2016 Per : Dr D.M.Misra,, These four appeals are filed against OIA-AKP/322-325/DMN/VAPI-I/2009-2010 dt 23.2.2010 passed by the Commissioner of Central Excise, Customs and Service Tax (Appeals) DAMAN. Since the issue involved in all these Appeals are common, these are taken up together for disposal.
2. The brief facts of the case are that the appellants are engaged in the manufacture of Bulk Drugs which were cleared to the domestic market as well exported. The appellant had claimed that since major quantity of the finished product, viz. Ethambutonal, which is exempted from payment of duty under Notification No.04/2006 CE dt.01.3.200, being exported, the CENVAT credit availed on the inputs, i.e. (i) DL 2 Aminobutanol & (ii) Monosodium Glutmate, used in the manufacture of the said exported goods could not be utilized for the domestic clearance, therefore, eligible to cash refund of the Cenvat Credit under Rule 5 of Cenvat Credit Rules, 2004. A total refund of Rs. 31,32,637/- has been claimed during the relevant period. Periodical Show Cause Notices were issued for rejection of the refund alleging that the appellant are not eligible to the cash refund on the ground that the product exported by them was exempted from duty and also they do not fulfill the conditions laid down under the Notification issued under Rule 5 of the Cenvat Credit Rules,2004 by producing sufficient evidences alongwith the refund claims. On adjudication, the refunds were rejected. Aggrieved by the said orders, the appellants preferred appeals before the Ld Commissioner (Appeals), who in turn, rejected their appeals, hence the present appeals.
3. The Ld Advocate for the appellant submits that the Ld commissioner (Appeals) has erred in observing that since the exported goods was exempted, therefore, they would not be eligible to refund of Cenvat Credit availed on inputs used in or in relation to manufacture of the said finished product. It is his contention that the principle in this regard is no more res integra being settled by the Honble Bombay High Court in the case of M/s Repro India Ltd Vs UOI 2009(235)ELT.614 (Bom), and Honble Himachal Pradesh High Court in the case of CCE vs Drish Shoes Ltd 2010(254)ELT.417 (HP) which has been followed by this Tribunal in the case of CCE, Ahmedabad vs Gujarat Ambuja Exports Ltd 2014(311)ELT.718 (Tri.Ahmd). Further, he submits that the Dept. has verified all the documents against their claim and it is incorrect to say that eligibility of cash refund was not supported by evidences.
4. The Ld AR for the Revenue though did not object to the principle laid down in the aforesaid judgments, however, he vehemently argued that the appellant had failed to comply with the conditions laid down under Rule 5 of the Cenvat Credit Rules read with Notification 5/2006-CE(NT) dt 01.3.2006. It is his contention that the Ld. Commissioner (Appeals) has decided the issue on the basis of principle of law applicable and did not discuss about the eligibility of the refund claim on merit by scrutiny of the evidences produced before him. He submits that the matter may be remanded to Ld. Commissioner (Appeals) for examining the case of the appellant on merit.
5. Heard both sides and perused the records.
6. I find that the appellant had claimed cash refund of Rs. 31,32,637/- during the period April 2007 to March 2008 under Rule 5 of CCR, 2004. As pointed out by the Ld. advocate, the refund claim was rejected on the ground that the goods exported by them being exempted, hence not eligible to refund; secondly, they failed to place supporting evidences to establish about the use of the inputs in the manufacture of finished goods which were exported and compliance of the conditions laid down under the relevant Notification. I find that the Ld. Commissioner (Appeals) while considering the issues recorded his observation on the first aspect only and concluded that they are not eligible to the cash refund of the CENVAT Credit as the exported was exempted from duty. However, he did not consider the eligibility of cash refund on merit on scrutiny of evidence. I find that the principles of eligibility of cash refund, when the goods are exempted from duty has been settled by the aforesaid cases viz., M/s Repro India Ltd, M/s Drish Shoes Ltd and M/s Gujarat Ambuja Exports Ltd (supra), hence, on this count the impugned Order is bad in law and not sustainable. However, for the purpose of analyzing the evidences, to ascertain the eligibility of cash refund of the credit on merit, I am of the view that the matter needs to remanded to the Ld. Commissioner (Appeals) for the limited purpose of scrutinizing the evidences.
7. At this stage, the Ld Advocate submits that the claim has been under litigation and pending for more than six years hence, a timeframe may be fixed for the remand proceeding.
8. The Ld. AR for the Revenue has no objection. Hence, as far as practicable, the de novo proceeding may be completed within four months from the date of communication of the order. Needles to mention a reasonable opportunity of hearing be granted to the Appellant. Appeals are allowed by way of remand to the Ld. Commissioner (Appeals) on the above terms.
(Dictated and pronounced in the Court) (D.M. Misra) Member (Judicial) swami ??
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