Synpol Products Pvt Ltd VERSUS  C.C.E.-Ahmedabad-ii

Excise Appeal No.119 of 2012

(Arising out of OIA-11-14/2012-AHD-II-CE/MM/COMMR-A-/AHD dated 23/01/2012 passed by Commissioner of Central Excise-AHMEDABAD-II)

Synpol Products Pvt Ltd

VERSUS 

C.C.E.-Ahmedabad-ii

WITH

i. Excise	Appeal	No.	10677	of	2013	(Messrs	Synpol	Products	Pvt
Ltd)
ii. Excise	Appeal	No.	10678	of	2013	(Messrs	Synpol	Products	Pvt
Ltd)
iii. Excise	Appeal	No.	10679	of	2013	(Messrs	Synpol	Products	Pvt
Ltd)

 

(Arising out of OIA-288-290-2012-AHD-II-CE-AK-COMMR-A-AHD dated 31/12/2012 passed by Commissioner of Central Excise-AHMEDABAD-II)

APPEARANCE:

Shri Sudhanshu Bissa, Advocate for the Appellant

Shri Kalpesh Shah, Assistant Commissioner (AR) for the Respondent

 

CORAM: HON’BLE MEMBER (JUDICIAL), MR. RAMESH NAIR

Final Order No. A/ 10720-10723 /2023

 

 

 

 

RAMESH NAIR

DATE OF HEARING: 01.12.2022 DATE OF DECISION: 28.03.2023

 

 

The brief facts of the case are that the appellant has two manufacturing units, one being an 100% Export Oriented Undertaking whereas, the other being a domestic manufacturer. The domestic unit had procured various raw materials on payment of duties and cenvat credit on such duties was availed by the domestic unit. Some of the raw materials required for the manufacture of goods at Export Oriented Unit was lying in

 

stock at the domestic unit and this inputs/raw materials were transferred by issuing invoices from the domestic unit to the EOU but the cenvat credit was taken by domestic unit on such inputs and raw materials was not reversed by the domestic unit therefore, for the period from January, 2010 to March, 2010, 12.07.2005 to 01.07.2006, 01.07.2006 to 04.04.2008 and 04.04.2008

to 13.03.2009, the domestic unit of the appellant company reversed amount of Rs. 98,336/-, Rs,3,54,730/-, Rs. 2,92,821/- and Rs. 4,27,512/- being the cenvat credit taken as inputs transferred to EOU during the above four period. The above amounts were debited in RG-23A Part-II of domestic unit on 29.03.2011, 08.02.2011, 02.03.2011 and 20.06.2011 respectively and the supplementary invoices in favour of the EOU for these four amounts were also issued by the domestic unit. Upon receiving the above invoices, the appellant took cenvat credit on these amounts during February to June, 2011 because the appellant being an 100% EOU was also legally entitled to take cenvat credit of duties paid on the inputs.

2. Since the appellant was not in a position to utilize the cenvat credit lying in the cenvat account, the appellant herein filed four refund claims on 31.03.2011,04.2011, 18.05.2011 and 23.06.2011 for Rs. 98,336/-,

Rs,3,54,730/-, Rs. 2,92,821/- and Rs. 4,27,512/- respectively. The adjudicating authority allowed these four refund claims by passing order-in- original nos. MP/139/Refund/2011-2012 dated 10.05.2011, MP/238/Refund/2011-2012 dated 16.06.2011, MP/245/Refund/2011-2012 dated 17.06.2011 and MP/344/Refund/2011-2012 dated 18.07.2011. Against these orders-in-original, the revenue filed appeals before the Commissioner (Appeals) on the ground that refund claims filed by the appellant were barred by limitation of time as provided under Section 11B of Central Excise Act, 1944. The learned Commissioner (Appeals) by Order-In- Appeal No. 11 to 14/2012 (Ahd-II)CE/MM/Commr(A)/Ahd dated 23.01.2012 allowed the revenue’s appeal on the ground that Rule 5 refund is against export and therefore, relevant date for calculating one year period under Section 11B of the Act would be the date of export and not the date of payment of duty. Against the said Order-In-Appeal, the appellant filed the present appeals.

3. Shri Sudhanshu Bissa, learned counsel appearing on behalf of the appellant submits that the appellant has filed the refund claim within one year fromthe date of payment made by the DTA unit in respect of the inputs supplied to the appellant therefore, in the present case the relevant date

 

should be one year from the date of payment of duty on the inputs accordingly, the appellant had filed refund claim well within one year from that date.

• It is his submission that the refund under Rule 5 could not have been made unless the supplier of input has paid the duty and the present appellant availed the cenvat credit. He further submits that the adjudicating authority has rightly decided the matter considering the refund claim falls under Clause (B)(f)of Section 11B which prescribes the relevant date from the date of payment of duty. In the present case, the refund was undisputedly filed within one year from the date of payment therefore, the refund is not time barred. He placed reliance on the following judgments:-
  • BALKRISHNA TEXTILES PVT. LTD VS. C.C.E.-AHMEDABAD-I DECIDED VIDE FINAL ORDER NO. A/10678-10682 /2022 DATED 06.2022.
  • COMMISSIONER,KANPUR  PACIFIC LEATHER FINISHERS 2016

(43) STR 273 (TRI. ALL.)

• COMMISSIONER OF CENTRAL EXCISE, JAMSHEDPUR VERSUS TATA MOTORS LTD. -2017 (48) S.T.R. 460 (JHAR.)
• COMMISSIONER OF CENTRAL EXCISE, PUNE-LI VERSUS MERCEDES BENZ (I) PVT. LTD 2018(11)GSTL 389 (TRI. MUMBAI)
• PNC CONSTRUCTION CO. LTD. VS. COMMISSIONER- 2016(344) ELT 906
• SUNRAYS ENGINEERS PVT. LTD. VS. COMMISSIONER – 2015(318) ELT 583(SC)
• SONYINDIA  LTD. VS. COMMISSIONER, NEW DELHI 2014

(304) ELT 660

• COMMISSIONER VS. MAHINDRA & MAHINDRA- 2007 (214) ELT 234

4. Shri Kalpesh Shah, learned Assistant Commissioner (AR) appearing on behalf of the revenue reiterates the finding of the impugned order.
5. I have carefully considered the submissions made by both the sides and perused the records. I find that the dispute in the present case is that whether the one year limitation provided under Section 11B shall be reckonedfrom the date of export or from the date of payment of duty on the input received by the appellant and used in the manufacture of export

 

goods. In this context, I reproduce Section 11B particularly for the purpose of relevant date as under:-

SECTION [11B. Claim for refund of [duty and interest, if any, paid on such duty]. — (1) Any person claiming refund of any [duty of excise and interest, if any, paid on such duty] may make an application for refund of such [duty and interest, if any, paid on such duty] to the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] before the expiry of [one year] [from the relevant date] [[in such form and manner] as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of [duty of excise and interest, if any, paid on such duty] in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such [duty and interest, if any, paid on such duty] had not been passed on by him to any other person :

 

Provided that where an application for refund has been made before the commencement of the Central Excises and Customs Laws (Amendment) Act, 1991, such application shall be deemed to have been made under this sub-section as amended by the said Act and the same shall be dealt with in accordance with the provisions of sub-section (2) substituted by that Act :]

 

[Provided further that] the limitation of [one year] shall not apply where any [duty and interest, if any, paid on such duty] has been paid under protest.

 

[ * * * * ]

 

[(2) If, on receipt of any such application, the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] is satisfied that the whole or any part of the [duty of excise and interest, if any, paid on such duty] paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund :

 

Provided that the amount of [duty of excise and interest, if any, paid on such duty] as determined by the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] under the foregoing  provisions  of  this  sub-section  shall,  instead  of being credited to the Fund, be paid to the applicant, if such amount is relatable to –

 

• rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India;
• unspent advance deposits lying in balance in the applicant’saccount current maintained with the [Principal Commissioner of Central Excise or Commissioner of Central Excise];
• refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification issued, under this Act;

 

• the [duty of excise and interest, if any, paid on such duty] paid by the manufacturer, if he had not passed on the incidence of such [duty and interest, if any, paid on such duty] to any other person;
• the[duty of excise and interest, if any, paid on such duty] borne by the buyer, if he had not passed on the incidence of such [duty and interest, if any, paid on such duty] to any other person;

 

• the [duty of excise and interest, if any, paid on such duty] borneby any other such class of applicants as the Central Government may, by notification in the Official Gazette, specify :

 

Provided further that no notification under clause (f) of the first proviso shall be issued unless in the opinion of the Central Government the incidence of [duty and interest, if any, paid on such duty] has not been passed on by the persons concerned to any other person.

 

• Notwithstanding anything to the contrary contained in any judgment, decree, order or direction of the Appellate Tribunal or any Court or in any other provision of this Act or the rules made thereunder or any other law for the time being in force, no refund shall be made except as provided in sub-section (2).

 

• Everynotification under clause (f) of the first proviso to sub-section

(2) shall be laid before each House of Parliament, if it is sitting, as soon as may be after the issue of the notification, and, if it is not sitting, within seven days of its re-assembly, and the Central Government shall seek the approval of Parliament to the notification by a resolution moved within a period of fifteen days beginning with the day on which the notification is so laid before the House of the People and if Parliament makes any modification in the notification or directs that the notification should cease to have effect, the notification shall thereafter have effect only in such modified form or be of no effect, as the case may be, but without prejudice to the validity of anything previously done thereunder.

 

• For the removal of doubts, it is hereby declared that anynotification issued under clause (f) of the first proviso to sub-section (2), including any such notification approved or modified under sub-section (4), may be rescinded by the Central Government at any time by notification in the Official Gazette.]

 

[Explanation. — For the purposes of this section, –

 

• “refund” includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India;
• “relevantdate” means, –
  • in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case maybe, the excisable materials used in the manufacture of such goods,

–

• ifthe goods are exported by sea or air, the date on which the ship or the aircraft in which such goods are loaded, leaves India, or

 

• if the goods are exported by land, the date on which such goods pass the frontier, or
• ifthe goods are exported by post, the date of despatch of goods by the Post Office concerned to a place outside India;

• in the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory for the purposes aforesaid;
• in the case of goods to which banderols are required to be affixed if removed for home consumption but not so required when exported outsideIndia, if returned to a factory after having been removed from such factory for export out of India, the date of entry into the factory;
• in a case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by notification in the Official Gazette in full discharge of his liability for the dutyleviable on his production of certain goods, if after the manufacturer has made the payment on the basis of such rate for any period but before the expiry of that period such rate is reduced, the date of such reduction;

[(e) in the case of a person, other than the manufacturer, the date of purchase of the goods by such person;]

[(ea) in the case of goods which are exempt from payment of duty by a special order issued under sub-section (2) of section 5A, the date of issue of such order;]

[(eb) in case where duty of excise is paid provisionally under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof;]

[(ec) in case where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, the date of such judgment, decree, order or direction;]

(f) in any other case, the date of payment of duty.]

 

 

From the above provision, it can be seen that in case of export of goods whether the duty on the finished goods which is exported or the duty paid on the raw material which is used in the export goods, the relevant date has to be taken from date of export of the finished goods. In the present case, the refund sought for by the appellant in respect of the duty paid on inputs which was used in the export goods in such case the relevant date is prima facie the date of export. However, in the peculiar facts of the present case even though the relevant date is prescribed in Section 11B but since the duty was not paid earlier the appellant could not have even file the refund claim. In the identical situation, this tribunal dealing with some other notification, with reference to time limit, passed a judgment which was relied upon by the learned counsel. These judgments were passed subsequent to the passing of the impugned order therefore, in my considered view since the question involved is mix of facts and law, the entire matter needs to be

 

re-considered in the light of the judgments delivered subsequent to the passing of the impugned order.

6. Accordingly, I set aside the impugned order and remand the matter back to the learned Commissioner (Appeals) to re-consider the matter once again in the light of the subsequent development of the law. The appeals are allowed by way of remand to the learned Commissioner (Appeals).

(Pronounced in the open court on 28.03.2023)

 

 

 

 

 

 

Mehul

(RAMESH NAIR) MEMBER (JUDICIAL)