Case Law Details
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
SOUTH ZONAL BENCH, CHENNAI
E/00148/2009
[Arising out of Order-in-Appeal No.158/2008 [CE] SLM,dated 04.12.2008 passed by the Commissioner of Customs &Central Excise(Appeals), Salem]
M/S. Pallav Textile Ltd.
Vs.
Commissioner Of Central Excise, Salem
Appearance:
For the Appellant- Shri M. Kannan, Adv.
For the Respondent- Shri B. Balamurugan, AC (AR)
CORAM: Hon’ble Shri D.N. Panda, Judicial Member
Date of hearing/decision -15-02-2016
FINAL ORDER NO. 40291/ 2016
1.1 Learned counsel says that the unutilised credit on account of Additional Duty of Excise lying in the records of the appellant has not become possible to be utilised in view of no levy of such duty on textile goods. In other words, when there no such levy continued due to exemption granted, the credit no more became possible to be utilised. However there is no notification issued by the Government to deprive the appellant from the credit by any means. Therefore, the ultimate way to enable the appellant to avail the credit is to grant the same as refund under Rule 5 of Cenvat Credit Rules, 2004. Therefore, the refund should be granted to the appellant, without its right being abrogated by any mode in absence of law in that regard.
1.2 Appellant relies on the decision of the Hon’ble High Court of Andhra Pradesh in the case of Commissioner of Customs, Commissioner of Central Excise & Service Tax, Hyderabad-IV Vs Apex Drugs & Intermediates Ltd. reported in 2015 (322) E.L.T.834 (A.P.) to butress its claim.
2. Learned departmental representative on the other hand says that when the appellant failed to carry out any export, the refund under Rule 5 of Cenvat Credit Rules, 2004 is not possible to be granted on the plea of unutilised credit remained. That too, the Additional Duty of Excise is an earmarked duty to be utilised against liability of the Additional Duty of Excise. On ceasation of the liability, the appellant is not ipso facto entitled to refund.
3. Heard both sides and perused the records.
4. What the learned counsel says is that its right not being abrogated by law and also in absence of any provision in law to deny refund, the unutilised credit of AED is refundable. Following the ratio laid down by the Hon ble High Court of Andhra Pradesh in the aforesaid judgment, appellant is entitled to refund. When law itself does not deny grant of refund of unutilised credit there shall be no question of limitation to apply. Accordingly, appeal is allowed.
(Dictated and pronounced in open court)
(D.N. PANDA)
JUDICIAL MEMBER
Please share the judgment Commissioner of Customs, Commissioner of Central Excise & Service Tax, Hyderabad-IV Vs Apex Drugs & Intermediates Ltd. reported in 2015 (322) E.L.T.834 (A.P.)