Gujarat HC allows Rebate of Excise Duty to Petitioner in Cash instead of Cenvat Credit in post GST regime

By Bimal Jain Excise Duty Judiciary February 11, 2019

TaxGuru Citation: 2019 taxguru.in 2513
Case Name: Thermax Limited vs Union Of India (Gujarat High Court)
Appeal Number: Only available for paid members
Date of Judgement/Order: Only available for paid members
Courts: All High Courts, Gujarat High Court

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Thermax Limited vs Union Of India (Gujarat High Court)

Facts:

Thermax Ltd. (Petitioner) is engaged in the manufacture of Boilers, Heaters, Heat Pumps and Pollution control equipment for industrial use and all these equipment’s are capital goods falling under Chapter 84 of the Central Excise Tariff Act, 1985 (CETA). The Petitioner has major manufacturing set up at Pune, Maharashtra and Baroda in Gujarat.

The Petitioner availed credit on the inputs, capital goods and input services used in the manufacturing of finished goods which are chargeable to excise duty. It is the case of the Petitioner that one of the customers M/s. Ansaldo Caldale SpA (“Siemens Projects”) had placed order on the Petitioner for supply of Boiler at Jeddah, Saudi Arabia. Therefore, with a view to carry out complete assemble, the Petitioner signed a lease agreement with Special Economic Zone on November 3^rd, 2007 and the Petitioner therefore was temporarily given Survey No.169 at village: Dhrub for assembling the boilers. The Petitioner exported the boilers on payment of applicable excise duty.

The Petitioner filed a rebate claim under Rule 18 of the Central Excise Rules, 2002 (“Central Excise Rules”) on June 16^th, 2008. Thereafter, after a period of three months i.e. on September 12^th, 2008, show cause notice was issued proposing to deny rebate claimed by the Petitioner. On March 5^th, 2009, the Petitioner filed reply to the show cause notice and thereafter, the Petitioner filed written submissions.

The Respondent rejected the rebate claim filed by the Petitioner on July 20^th, 2011. Therefore, the Petitioner has challenged the same before the Commissioner of Central Excise (Appeals), Rajkot, who in turn rejected the appeal on November 22^nd, 2011 by upholding the order in original dated July 20^th, 2011. Being aggrieved with the said order, the Petitioner filed Revision Application before the Revisionary Authority on December 27^th, 2017, which had rejected the Revision Application of the Petitioner.

Issue involved:

Whether the Petitioner is entitled to receive refund of amount of duty paid in cash instead of credit to CENVAT account?

Held:

The Hon’ble Gujarat High Court (“Gujarat HC”) passed the following ruling in the matter of Special Civil Application No. 11846 of 2018 dated February 11^th, 2019: