Refund Re-Quantification Set Aside as Original Refund Quantum Attained Finality: CESTAT Chandigarh

ACC Limited Vs Commissioner of CGST & Central Excise (CESTAT Chandigarh)

The appeals were filed by ACC Ltd. and Ambuja Cements Ltd. against orders dated 29.04.2025 upholding Orders-in-Original dated 26.12.2024 and 27.11.2024, whereby the refund granted pursuant to the Tribunal’s Final Order dated 01.07.2024 was reduced by increasing the deduction on account of CENVAT credit availed on clinker manufactured and captively consumed. Since the factual matrix was identical, both appeals were heard together.

The appellants had availed exemption under Notification No. 50/2003-CE while manufacturing cement and also manufactured clinker, part of which was captively consumed. Following the Supreme Court’s order dated 21.08.2015 holding that the appellants were entitled to exemption under Notification No. 67/95-CE on captively consumed clinker, refund claims were sanctioned in 2016. However, the sanctioned amounts were credited to the Consumer Welfare Fund on the ground of unjust enrichment after deducting specified amounts of CENVAT credit. The Tribunal, by Final Order dated 01.07.2024, held that the amounts deposited were in the nature of pre-deposit under Section 35F of the Central Excise Act, 1944, that unjust enrichment was inapplicable, and that the refunds already sanctioned but credited to the Consumer Welfare Fund were payable to the appellants.

The appellants contended that the refund quantified in the 2016 Orders-in-Original had attained finality as the Revenue had not challenged those orders. They submitted that the Assistant Commissioner, while implementing the Tribunal’s order, impermissibly re-opened the refund quantification by increasing the deduction of CENVAT credit. They argued that the Tribunal’s earlier order only clarified that the CENVAT credit already deducted would not be refundable and did not authorize re-quantification. They also submitted that if the department disputed the admissibility of CENVAT credit, it was free to recover it in accordance with law, but not by reducing the refund already quantified. Reliance was placed on Nokia India Sales P. Ltd. v. CC and other decisions.

The Revenue submitted that the impugned orders merely implemented the Tribunal’s directions by deducting the CENVAT credit computed from the ER-1 returns and that the appellants had not challenged the correctness of the computation or the Tribunal’s direction regarding deduction of CENVAT credit.

The Tribunal examined its Final Order dated 01.07.2024 and observed that it had held the deposits to be covered by Section 35F, that unjust enrichment did not apply, that refund was to be granted after deducting the CENVAT credit accepted by the appellants, and that if the department had any issue regarding admissibility of CENVAT credit, it could take action in accordance with law. It held that the earlier order did not direct a fresh deduction or enhanced deduction of CENVAT credit and could not be construed as conferring a right upon the department to deduct the amount a second time while increasing the deduction.

The Tribunal further held that the adjudicating authority had already verified the calculations in 2016 and quantified the admissible refunds after deducting the agreed CENVAT credit. Since the department had not appealed against the quantum of refund, that determination attained finality and could not be re-opened while implementing the Tribunal’s order. It found the Commissioner (Appeals)’ view that refund quantification had not attained finality to be factually and legally untenable. Accordingly, the impugned orders were set aside and both appeals were allowed.

FULL TEXT OF THE CESTAT CHANDIGARH ORDER

M/s ACC Ltd (Appeal No. E/60524/2025) and Ambuja Cements Ltd (Appeal No. E/60906/2025) assail the impugned orders dated 29-4-2025, passed by the Commissioner (Appeals), CGST, Chandigarh, upholding the Order-in-Original dated 26-12-2024 and 27-11-2024 respectively, passed by the Assistant Commissioner, CGST Mandi Division, Himachal Pradesh, wherein the amount of refund granted to the appellants, in pursuit of Tribunal’s Final Order No.60395-60396/2024 dated 1-7-2024, was reduced to the extent of Rs. 55,00,39,624 and12,81,28,016 respectively, on account of Cenvat Credit availed on Clinker manufactured and used by them captively. Factual matrix of both the cases being identical and being dealt a common impugned order, both appeals were heard together and are being taken up together.

2. Both the Appellants’ factories are located in Himachal Pradesh and were engaged in the manufacture of Cement; the appellants availed exemption from Central Excise duty under Notification no.50/2003-CE dated 20^th June 2003; the Appellants also manufactured Clinker, part of which was cleared outside the factory on payment of duty and balance was used captively in the factory for manufacture of the Cement on which the said duty exemption under Notification No.50/2003-CE was availed; the Appellants were denied the benefit of exemption from Central Excise duty under Notification No.67/95-CE dated 16-3-1995 on the portion of the Clinker which was captively consumed in the manufacture of exempted Cement on the grounds that final product was exempted; the Appellant had litigated the issue up to the Hon’ble Supreme Court. Hon’ble Supreme Court, by their Order dated 21-8-2015, held that the Appellants were entitled to the exemption under Notification no.67/95-CE on the Clinker captively consumed.

2.1. In view of the said Order by the Hon’ble Supreme Court, the Appellants became entitled to refund of the amounts which were pre-deposited pending the Appeals before the Commissioner (Appeals), Tribunal and Supreme Court. The Appellants accordingly, requested the Deputy/Assistant Commissioner to refund the said amounts with interest; Deputy/Assistant of Central Excise, vide Orders-in-Original sanctioned the Refund but ordered the same to be credited to the Consumer Welfare Fund on the grounds of unjust enrichment. Deputy/Assistant while calculating the refund as above, deducted amounts on account of Cenvat Credit availed on the inputs and input services used in relation to the Clinker captively consumed; the impugned orders recorded that the Appellants agreed to such deduction.

2.2. The Appellants carried the matter in appeal against the crediting of the sanctioned refunds to the Consumer Welfare Fund, instead of paying the same to the Appellants. This bench, vide Final Order No.60395-60396/2024 dated 1-7-2024, held that the amount deposited by the Appellants, were in the nature of Pre-deposit under Section 35F of the Central Excise Act 1944; the principle of unjust enrichment does not apply and that in any case the appellants had by evidence rebutted the presumption of passing the incidence of the said amount and that the Appellants were entitled to the refunds which were earlier sanctioned but credited to the consumer welfare fund.

2.3. Particulars and figures in respect of both the appeals are as below.

3. Shri J,C, Patel, Learned Counsel for the appellants submits in respect of Appeal filed by ACC Ltd that in responds to the letters issued by department w.r.t. the refund claim, the Appellant by their e-mail dated 10-12-2024, submitted that the quantification the refund amount of Rs.652,41,66,464/- by Order-in-Original dated 16­9-2016 had attained finality since no appeal against the same had been preferred by the department; However, Assistant Commissioner, vide the impugned Order-in-Original dated 26-12­2024, increased the deduction on account of the said Cenvat Credit amount of Rs. 39,44,73,881, already deducted vide order dated 16­9-2016, to Rs. 55,00,39,624/- and thereby reduced the refund amount from Rs.652,41,66,464/- to Rs.636,86,00,721/-.

4. Learned Counsel submits in respect of appeal filed by M/s Ambuja Cements Ltd (Appeal No. E/60906/2025) that consequent to the Hon’ble Supreme Court’s decision, by Order-in-Original dated 7/15-9­2016, the Deputy Commissioner of Central Excise sanctioned Refund of Rs.191,09,14,680/-, as against refund claimed of Rs. 209,42,47,320; Deputy Commissioner arrived at the refund amount by deducting the Cenvat Credit, of 11,23,89,005/- plus interest of Rs.7,09,43,635, which was already deducted while arriving at the refund amount vide order dated 7/15-9-2016; the said Order also recorded the Appellant’s acceptance to the said deduction of Cenvat Credit.

5. Learned Counsel submits that in both cases, the original orders, dated 16-9-2016 or 15/9-9-2016 as the case may be, were not appealed against by Revenue; therefore, as far as the quantum of refund admissible or the amount of Cenvat credit to be deducted have attained finality; it is in fact the appellant who has appealed against the crediting of the refund amount to consumer welfare fund. He submits that the Assistant Commissioner of Central Excise, instead of implementing the said Order dated 1-7-2024 of Tribunal, re-opened the question of quantification of the refund amount by questioning the Cenvat Credit amount deducted vide Orders-in-Original dated 16-9-2016 15/9-09-2016; this is not permissible.

6. Learned Counsel submits further that it was held in Nokia India Sales P. Ltd v CC – (2024) 25 Centax 293 that where the Deputy Commissioner passes an Order sanctioning the refund and directing it to be credited to consumer welfare fund and the department does not prefer an appeal against the portion of the order sanctioning the refund and only the assessee prefers appeal against the direction to credit the sanctioned refund to Consumer Welfare fund, then and accordingly if the assessee succeeds on the issue of unjust enrichment in appeal, the sanctioned refund has to be paid to the assessee. He relies also on (i). Objects D’ Art India 2016 (344) ELT 569 (ii). Ma Care – 2017 (358) ELT 451and (iii). ABB Ltd v CC – 2005 (181) ELT 71.

7. Learned Counsel submits that in this context, Tribunal in its final Order dated 1-7-2024 held that the refunds sanctioned to the appellant, vide orders cited above, need to be refunded to the appellants instead of crediting the same to the consumer welfare fund. Tribunal took cognizance of the fact that the appellants have accepted that amount of Cenvat credit availed, on inputs and input services, in the manufacture of Clinker which was captively consumed, could be deducted; Tribunal held, in Paras 57 and 62, that the adjudicating authority had recorded a finding that the Appellant had agreed to the deduction of the Cenvat Credit availed on the inputs used in the manufacture of clinker captively consumed from the amount deposited in respect of such clinker; Tribunal therefore made it clear that the amount of Cenvat Credit deducted by the adjudicating authority will not be liable to be refunded to the Appellant; in view of the said Order dated 1-7-2024 of the Tribunal, the said refund amount of Rs.652,41,66,464 sanctioned to ACC Ltd and Rs 191,09,14,680 sanctioned to M/s Ambuja Cements Ltd, after deducting the said Cenvat Credit, by the respective Orders-in-Original, but which had been credited to the Consumer welfare fund, became liable to be paid and refunded to the Appellant.

8. Learned Counsel submits, without prejudice to the aforesaid submissions, that the re-quantification is not only legally permissible as above, but also not acceptable on facts as the original deduction arrived at by orders issued in 2016, was on the basis of the verification Report of the Range officer; the same was mentioned in the Orders-in-Original passed in 2016. Learned Counsel submits that the lower authorities have failed to appreciate that Tribunal has in its Order dated 1-7-2024 noted in that the adjudicating authority had recorded a finding that the Appellant had agreed to the deduction of the Cenvat Credit availed on the inputs used in the manufacture of clinker captively consumed from the amount deposited in respect of such clinker.; tribunal made it clear that the amount of Cenvat Credit deducted by the adjudicating authority will not be liable to be refunded to the Appellant; the said clarification is being mis-read and mis-interpreted by the lower authorities to mean that the Hon’ble Tribunal had directed re-quantification and re-determination of the amount of Cenvat Credit. He submits that on the contrary, Tribunal held categorically, in Para 57 that if there was any dispute about the Cenvat Credit, department ought to have taken necessary steps to recover the same along with interest as per law. When this has not been done, the refund amount already sanctioned, by Orders-in-Original dated 16-9-2016 or 15/09-2016, cannot be reduced; Finding by Commissioner (Appeals), in the impugned Order-in-Appeal dated 29-4-2025, that the quantification and sanction of refund cannot be said to have attained finality as the same was subject matter of appeal in Order-in-Appeal dated 28-3-2019 and Tribunal’s Order dated 1-7-2024, is ex-facie erroneous and misconceived since appeal was not filed by the department disputing the amount of refund sanctioned. It is the appellant who challenged the credit of the sanctioned refund amount to the Consumer Welfare fund instead of being paid the to the Appellant.

9. Learned Counsel submits vide additional submissions, given subsequent to the hearing, that as stated in the grounds of appeal, at Para J1, Appellants have already filed an appeal before the Hon’ble Himachal Pradesh High Court challenging the CESTAT, Chandigarh Order dated 01.07.2024 regarding entitlement to interest on the amount deposited prior to 06.08.2014; the Appellants are not pressing for interest on the delayed refund tin this appeal; the same is pending before the Hon’ble High Court, and the Appellants reserve the right to claim interest depending on the final decision rendered by the Hon’ble High Court. Learned Counsel submits that Hon’ble CESTAT may kindly record that the issue of interest on delayed refund will be subject to the outcome of the appeal pending before the Hon’ble Himachal Pradesh High Court, to avoid multiplicity of the proceedings.

10. Ms. Amita Gupta, learned authorized representative for the Revenue reiterates the findings of the impugned order and submits that in view of the direction of the Hon’ble Tribunal vide Final Order dated 01.07.2024 refund was granted after deducting the Cenvat credit availed; the Cenvat credit availed on the inputs used in the manufacture of captively consumed clinker was computed on the basis of the ER-1 returns filed by the appellants; the appellant has not challenged the correctness of the calculation of Cenvat Credit. She submits that the direction given by the Tribunal to reduce the refund to the extent of Cenvat Credit has not been challenged by the appellants.

11. Heard both sides and perused the records of the case. Brief issue that requires our consideration in the instant appeals is as to whether the Revenue was correct in deducting the Cenvat Credit amount from the refund that was required to be granted to the appellants in terms of the Final Order dated 01.07.2024 of this bench. The appellants contended that the lower authorities misread and misinterpreted the above order; the Bench vide Final Order cited above, held very clearly that if there was any dispute about the Cenvat Credit department ought to have taken necessary steps to recover the same along with interest as per law; as the original authority has already deducted the Cenvat Credit of Rs. 39,50,09,497 in respect of M/s ACC Ltd and Rs 11,23,89,005 (Cenvat plus Interest) in respect of Ambuja Cements Ltd while passing the orders, passed in 2016, sanctioning the refund and crediting the same to Consumer Welfare fund, on the question of unjust enrichment; there was no reason to deduct the same again and moreover to increase the deduction to Rs. 55,00,39,624 in respect of M/s ACC Ltd and Rs 12,81,28,016 (Cenvat plus Interest) in respect of Ambuja Cements Ltd. He submits that it is the appellants who have agitated against the same and the Tribunal in the Final Order dated 01.07.2024 held that the amount paid by the appellants was in the nature of deposit under Section 35F of the Central Excise Act, 1944 and as such no bar of unjust enrichment is applicable; the Bench inter alia held that Cenvat Credit availed on the inputs used in the manufacture of captively consumed clinker, be deducted as accepted by the appellants before the original authority. Learned Counsel for the appellants submits that the Tribunal order should not be read to interpret that Cenvat Credit deducted already vide Orders in Original should be deducted once again while sanctioning the refund. He submits that this is more so because of the categorical finding of the Tribunal that if there is any dispute regarding the admissibility of Cenvat Credit availed Revenue was free to take action as per law and due to the fact that Revenue has not challenged the quantification arrived by the Order in Original dated 16.09.2016; it is not open for the Revenue to re-open the Cenvat Credit and re-quantify the same. The Revenue on the other hand submits that the impugned orders have followed the directions of the Tribunal.

12. We find that it is required to visit the relevant paras of the Final Order dated 01.07.2024 passed by this Bench regarding the Cenvat Credit in the issue before us. We find that this Bench observed as under:

57. Learned Special Counsel for the Revenue submits that the appellants have availed Cenvat Credit on one hand and on the other hand have claimed that the amount paid by them was a deposit and the same be refunded after the Hon’ble Supreme Court decided the issue in their favour is contradictory. We fail to understand this argument. Hon’ble Supreme Court in the final order cited above, while deciding the case in favour of the appellants on merits, held that taking of CENVAT credit is not an issue raised in these cases. We find that neither the original authority nor the first appellate authority have denied Cenvat Credit. The adjudicating authority records a finding that the appellants have submitted that the refund claimed by them may be reduced to the extent of the Cenvat credit the appellants have availed on the inputs used in the manufacture of clinker. We also find that the original authority records that the appellants did not agree to the deduction of interest on the Cenvat credit availed by them. We are of the considered opinion that, in case the appellants have Cenvat Credit in a wrongful manner, revenue could have taken necessary steps to recover, the same along with the interest, as per law. We find that the appellants have fairly conceded that the Cenvat credit, availed by them, on the inputs used in the manufacture of clinker, during the entire period in dispute. We find that the availment of Credit cannot be a bar for claiming refund of duty paid on intermediate or final products. Moreover, special counsel submits that the appellant had produced CA certificate on 12.05.2017, whereas the Order in Original rejecting the claim for refund was passed on 16.09.2016 whereas the i.e. after the date of order in original. We find that the appellants have filed the refund claim consequent to the Hon’ble Apex Court’s decision in their favour. The appellants had filed the claim under the belief that the refund was of deposit made under Section 35F of Central Excise, Act 1944. No opportunity was accorded, by the original authority, to the appellants to be aware that there was a need to rebut the presumption under Section 11/12 of the Central Excise Act, 1944. When the adjudicating authority did not appreciate their argument and rejected their claim on the issue of unjust enrichment, the appellants have submitted the said Certificate to the first appellate authority.

And we also find that the operative part of the order reads as under:

63. In view of the above, the appeals are partially allowed and the impugned orders are modified to the extent to say that:

(i) Both the appellants are entitled to the refund of amount deposited, during the pendency of litigation, to exercise the right of appeal, before the Commissioner (Appeals), CESTAT and the Hon’ble Supreme Court of India;

(ii) However, refund as at (i) above, be granted after deducting the Cenvat Credit availed by them on the inputs used in the manufacture of Clinker, during the period in dispute.

(iii) The appellants are entitled to interest, on the delayed payment of refund only, at the rate statutorily prescribed, in respect of amounts deposited on or after 06.08.2014.

13. On going through the above final order dated, passed by this bench, we find that the only unmissable take away of the order are as follows.

(i). The amounts paid/ deposited by the appellant during the pendency of proceedings before Commissioner (Appeals), CESTAT and Hon’ble Supreme Court are in the nature of deposit for the purposes of Section 35F and as such the rigours of unjust enrichment are not applicable.

(ii) Alternatively, even if for the sake of equity, it is presumed that the appellants have passed on the incidence of duty, such presumption is a rebuttable presumption and that the appellants have rebutted the same.

(iii) As accepted by the appellants, the amount refundable would be after deducting the amount of Cenvat Credit availed by them on the inputs and input services used in the manufacture of clinker captively consumed in the manufacture of cement.

(iv) If the department has any issues with the admissibility of the credit availed, they were free to take action as per law.

14. It is nowhere specified in the order that Cenvat credit should be deducted again even if it has been deducted while arriving at the refundable amount in the orders passed in 2016. Such an interpretation is bereft of any legal backing and in addition would be defeating the spirit of the justice. It was mentioned in the operative portion of the order that However, refund as at (i) above, be granted after deducting the Cenvat Credit availed by them on the inputs used in the manufacture of Clinker, during the period in dispute, is in order to restrict the claim of the appellants as their appeals are allowed and to make it clear that they shall not claim refund of the same as per their applications before the jurisdictional authorities, consequent to the decision of Hon’ble Supreme Court, by their Order dated 21-8­2015. We are of the considered opinion that it can in no way be construed as a right conferred to the department to deduct the amount on account of Cenvat availed a second time there too increasing such deduction.

15. Learned counsel for appellants submits that the department has not appealed against the amount of refund arrived by the Assistant Commissioner, vide orders cited above, i.e. order dated 16-9-2016 in respect of M/s ACC Ltd and order dated 15/9-9-2016 in respect of Ambuja Cements Ltd and therefore, the quantum of refund arrived at was final and it is not open for the department to reopen the issue of quantification. We are in agreement with the contention of the appellants. We find that the if revenue was of the opinion that the quantification was incorrect, they could have very well appealed against the orders seeking re-quantification. In case the appellants availed and/or utilised Cenvat Credit which was not permissible, revenue could have proceeded against the appellants to recover such credit. Having missed the opportunity, revenue cannot re-open the issue of amount of refund or of Cenvat Credit while implementing an order which was issued by this bench, in consequence of the appeals filed by the appellants against the crediting of the refund to consumer Welfare fund. We find that it was held in Nokia India Sales P. Ltd v CC (2024) 25 Centax 293; Objects D’ Art India 2016 (344) ELT 569; Ma Care – 2017 (358) ELT 451and ABB Ltd v CC – 2005 (181) ELT 71 that where the Deputy Commissioner passes an Order sanctioning the refund and directing it to be credited to consumer welfare fund and the department does not prefer an appeal against the portion of the order sanctioning the refund and only the assessee prefers appeal against the direction to credit the sanctioned refund to Consumer Welfare fund, then and accordingly if the assessee succeeds on the issue of unjust enrichment in appeal, the sanctioned refund has to be paid to the assessee. We find that the Principal Bench of the Tribunal held in the case of Nokia India Sales Pvt. Ltd. (supra) that:

44. It clearly follows from the aforesaid decisions that if the department does not challenge a finding of the adjudicating authority by filing an appeal before the Commissioner (Appeals), than that finding of the adjudicating authority attains finality and the department cannot be permitted to subsequently raise this issue in a higher forum. This is what was observed by the Allahabad High Court in Indian Farmers Fertilizers. In Neelima Srivastava it was also held by the Supreme Court that an order which has attained finality between the parties can only be assailed in a manner known to law and mere over-ruling of the principles followed in the said order by a subsequent judgment cannot dilute the binding effect of the decision. In Global Constructions, the Tribunal examined almost a similar issue. The adjudicating authority sanctioned the refund amount but credited it to the Consumer Welfare Fund. The Tribunal held that though the Supreme Court had subsequently held in ITC that a refund can be claimed only if the assessment order is modified but since the finding of the adjudicating authority sanctioning refund was not assailed by the department before the Commissioner (Appeals), it would not be permissible for the department to raise this issue before the Tribunal.

45. Learned authorized representative appearing for the department has relied upon the decision of the Tribunal in Shiv Naresh Sports to contend that even a respondent can raise a legal issue. It needs to be noted that the legal issue that is now sought to be raised by the department is that the refund applications are not maintainable for the reason that assessment proceedings had not been challenged by the appellant by filing appeals. This issue, as noticed above, had attained finality. Once the department allowed a particular issue to attain finality, it will not be permissible to permit the department in appellate proceedings initiated by an assessee before the Tribunal to raise this issue, even if it be a legal issue. The issue that is sought to be raised is not even the subject matter of these appeals as the sole issue that arises for consideration in these appeals is whether the incidence of duty was passed on to the buyers. In all the decisions that have been referred to by the learned authorized representatives for the department only general principles regarding raising of a legal issue have been examined. In none of these decisions it has been held that even if an issue that is sought to be urged has attained finality, it can still be raised considering it to be a legal issue. The decisions relied upon by the learned authorized representatives appearing for the department, therefore, do not come to the aid of the department.

46. It has, therefore, to be held that as the order dated 23.01.2017 passed by the Deputy Commissioner sanctioning refund had attained finality as no appeal was filed by the department to assail this order, the department cannot be permitted to raise the issue regarding maintainability of the refund applications.

16. Further we find that the adjudicating authority, vide order dated 16-9-2016 in respect of M/s ACC Ltd and order dated 15/9-9-2016 in respect of Ambuja Cements Ltd, arrives at the quantity of the Cenvat Credit amount after causing due verification through the jurisdictional Superintendent. The Assistant Commissioner observes in respect of ACC Ltd that

From the above, I observe that the assessee had paid duty in respect of the quantity of clinker cleared for captive consumption in each of the month vide TR-6/GAR7 Challans as detailed above. They had paid the above duties directly through the challans or some of the times had debited in their PLA after availing credit of the amount paid through challan. Further some of the times, they had paid the duties partly through the Challans and partly from the cenvat credit taken by them and available with them during the corresponding month. Accordingly, from the above, total amount of duty paid comes out to be Rs 691,97,84,476/-. Further the claimant had also intimated that they had availed Cenvat credit to the tune of Rs 39,44,73,881/- on the inputs and Input Services used in the manufacture of Clinker during the period from May 2005 to February 2013. They also submitted the ratio of clearance of Clinker (year wise break-up) after payment of duty vis-a-vis the total clearance of clinker for the period from May 2005 to Feb. 2013. From the above, the total clearance of Clinker that is being captively consumed for manufacture of Cement can be derived. Accordingly, the Cenvat credit availed on inputs and Input services used in the manufacture of Clinker which was captively consumed for manufacture of Cement during the period from May 2005 to Feb. 2013 is arrived at Rs 39,44,73,861/-. in their refund claim, the assessee had mentioned that the refund claimed amount of Rs 652,41,66,464/- is net of the Cenvat credit availed of the inputs and the Input services used in the manufacture of clinker which were later captively consumed in the manufacture of duty exempted cement during the period May 2005 to Feb. 2013. i.e. Rs. 6,919,784,476/- (gross refund amount) minus Rs. 39,44,73,981/- (Cenvat credit on Inputs & Input services used in the manufacture of clinker during the period May 2005 to Feb. 2013 equal to Rs. 652,41,66,464/- (refund claimed amount). However from the above-mentioned table the duty paid under protest minus the Cenvat credit availed of during the period May 2005 to Feb. 2013, comes out to 652,53,10,595/- but since the assessee have filed the claim for Rs 652,41,66,464/- only, hence the claim will be processed for their claimed amount i.e. Rs 652,41,66,464/-only.

16.1. We find that the Assistant Commissioner observes in respect of M/s Ambuja Cements Ltd that ACC Ltd that

I also find from their submissions that the assessee had availed Cenvat credit to the tune of Rs 25,28,24,809/- on the Inputs and Rs 8,49,84,044/- on the Input Services used in the manufacture of Clinker during the period from February 2005 to February 2013 on 28.02.2013, Hence they had availed Cenvat credit to the tune of. Rs. 33,78,08,853/- on inputs and input services during the course of manufacture of Clinker during the subject period on 28.02.2013. They also submitted that the ratio of clearance of Clinker after payment of duty to the total clearance of Clinker is 66.73% taking in to account the total clearance of Clinker on payment of appropriate Central Excise duty and quantity of Clinker captively consumed during the period from February 2005 to February 2013. From the above, it can be derived that 33.27% of the total clearance of Clinker is being captively consumed for the manufacture of duty exempted Cement. Hence the Cenvat credit availed on the manufacture of Clinker which is captively consumed for manufacture of duty exempted Cement is arrived at Rs 11,23,89,005/- In their refund claim, the assessee had deducted the amount of above said Cenvat credit availed by them on Input and input services which were used in the manufacture of clinker which was later used in the manufacture of exempted cement, from their claim of total excess duty paid amounting to Rs. 209,42,47,320/- and accordingly filed their refund claim for an amount of Rs.198,18,58,315/- towards the excess duty paid by them. Further during the course of personal hearing on 02.05.2016, they had also agreed to deduct the applicable Interest on the said cenvat credit availed by them on the inputs and the input services, from their above said refund claimed amount. Hence the interest amount also needs to be calculated on the same from the date of availment of such Cenvat credit i.e. 28.02.2013. Further I see that the assessee had availed the Cenvat credit on the input and input services to the tune of Rs 11,23,89,005/-in the month of February 2013(on 28.02.2013), in respect of Clinker used for captive consumption and the interest on such Cenvat credit availed has to be taken in to account for the period since February 2013 and to be set off while arriving at their present refund claimed amount. The total interest on the said Cenvat credit, availed by them on 28.02.2013, up to 31.08.2016 comes to Rs 7,09,43,635/- which is also required to be deducted from the amount claimed as refund by the assessee as agreed by them during the personal hearing. Hence in view of the above and as agreed by the assessee/claimant, I find that the actual refund claimed amount as consented by the assessee/claimant in this case comes out to be Rs 191,09,14,680/- (209,42,47,320/- (-) 11,23,89,005/- (-) 7,09,43,635/-) and the interest thereon in terms of section 35FF of the Central Excise Act, 1944, which needs to be decided in this case. I, therefore, restricts myself to decide their refund claim of Rs 191,09,14,680/-.

16.1. In view of the above, it is clear that the adjudicating authority has applied his mind, caused necessary verification, checked the calculations and arrived at the quantum of refund admissible. There is no appeal against the quantum of refund by the department. Therefore, it’s not open to the department to re-open the issue of quantification in view of the discussion and the cases relied upon by the appellants. Thus, we find that the amount of admissible refund as arrived by the original authorityorder, vide order dated 16-9-2016 in respect of M/s ACC Ltd and order dated 15/9-9-2016 in respect of Ambuja Cements Ltd , attained finality as far as amount of refund is concerned. The appeal against the above orders by appellants were on the issue that the sanctioned refund required to be paid to the appellants rather than crediting the same to Consumer Welfare Fund. This Bench, vide final order dated 01.07.2024, decided the issue in favour of the appellant i.e. holding that the amount of refund, as arrived vide order issued in 2016, as cited above, need to be paid to the appellants, instead of crediting the same to Consumer welfare Fund. This being the case the finding of the Learned Commissioner that the issue related to quantity of refund has not attained finality is neither factually correct nor legally tenable. In view of the same, the impugned order is liable to be set aside.

17. In the result, both the appeals are allowed.

(Order pronounced in the open court on 02/06/2026)