2004 (97) ECC 414 (Tri)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

New Delhi -- Bench-NB(SM)

Shri S.S. Kang, Member (J)

Rollatainers Ltd.

Versus

CCE, Jaipur

Appeal No. E/412/2003-NB(S)

[Arising out of Order-in-Appeal No. 371-CE/Appl/Div.V/DLH-IV/2003 dated 245.10.2003 (sic) passed by the Commissioner of Central Excise (Appeals), Delhi-IV]

Final Order No. A/961/2004/NB(SM), dt. 26.5.2004, Certified on 24.6.2004

Refund (C. Excise)

Through cheque/Through Cenvat account -- Whether the appellants are entitled for the refund in cash. It cannot be said that the Assistant Commissioner has not gone into the merits of the case as per the directions of the Tribunal. There is no infirmity in the impugned order whereby the refund was allowed to Cenvat account. However, the impugned order is modified to the extent of that appellants are entitled for the refund of Rs. 8,17,694 through Cenvat account.

[Paras 2, 7 & 8]

Appeal disposed of accordingly

PRESENT :

Shri R.C. Gupta, Adv. for the appellants.

Shri V. Valte, SDR for the respondent.

Cases Cited :

1. Adi Sakthi Fabricators P. Ltd. v. CCE, Chennai, 2004 (113) ECR 813 (Tri.-Chennai) (Distinguished) [Paras 4, 7]

2. Ashok Arc. v. Commissioner of Central Excise, Jamshedpur, 2002 (145) ELT 591 (Tri.-Kolkata)(Distinguished) [Paras 4, 7]

3. Deccan Sales Corporation & Anr. v. R Parthasarthy & Ors., 1982 (10) ELT 885(Distinguished) [Para 4]

Per : S.S. Kang

Heard both sides.

2. Appellants filed this appeal against the Order-in-Appeal whereby the Commissioner (Appeals) held that the refund claims of Rs. 8,17,694 allowed through Cheque is not admissible. However, the appellants are entitled for the refund through Cenvat account for Rs. 7,61,102.

3. The contention of the appellants is that the benefit of Modvat credit of Rs. 8,17,894 was denied to the appellant and the appellants challenged the denial of this credit and the Tribunal vide Final Order No. 697/99-NB(SM) Dated 3.5.99 remanded the matter to the adjudicating authority. Adjudicating Authority allowed the Refund of Rs. 8,17,894. The Revenue filed appeal against his order on the ground that the appellants are not entitled for the refund in cash and the Adjudicating authority had not decided the issue in respect of Rs. 44,810 and Rs. 11,782 as per the direction of the Tribunal.

4. The contention of the appellants is that this amount is deposited by way of pre-deposit during the pendency of the proceedings, therefore, they are entitled for the refund in cash. The appellants relied upon the decisions of the Tribunal in the case of Adi Sakthi Fabricators P. Ltd. v. CCE, Chennai, 2004 (113) ECR 813 (Tri.-Chen.)., Ashok Arc. v. Commissioner of Central Excise, Jamshedpur, 2002 (145) ELT 591 (Tri.-Kol.) and Deccan Sales Corporation & Anr. v. R Parthasarthy & Ors., 1982 (10) ELT 885.

5. The contention of the appellants in respect of the findings of the Commissioner (Appeals) whereby the refund for Rs. 44810 and Rs. 11782 was remanded to the Adjudicating authority. The contention is that Assistant Commissioner in pursuance to the remand order passed by the Tribunal after verifying of the documents allowed the refund and the Adjudicating authority in the order even mentioned the fact that the claim was also pre-audited by the Competent Authority.

6. The contention of the Revenue is that amount in dispute was not pre-deposited. The appellants debited this amount during the pendency of the adjudicating proceedings through their Modvat credit. Therefore, the appellants are entitled for refund in cash. They can only take credit of the amount of their Modvat credit. The Revenue also supported finding of the Commissioner (Appeals) whereby the dispute in respect of 44810 and Rs. 11782 was remanded to the Adjudicating authority.

7. In this case the main issue is whether the appellants are entitled for the refund in cash. Admitted facts of the case are that the appellants deposited this amount during the pendency of the appeal through their Modvat account. Appellants relied upon the decision of the Tribunal in the case of Adi Sakthi Fabricators P. Ltd. (Supra). In this case the some amount was paid by the assessee through Modvat account and some amount was paid by cash and in this situation allowed the refund in cash. In case of Ashok Arc. v. Commissioner of Central Excise, Jamshedpur (Supra), the refund was allowed in cash as the assessee was working under Small Scale Exemption Notification and were clearing the goods without payment of duty and was not maintained any credit account. In this situation, the refund was allowed by way of cash. In the case of Deccan Sales Corporation (supra); the Hon'ble High Court allowed the refund in cash on the ground where the amount was paid through PLA. The facts of the present case are different. In the present case it is admitted by the appellants that whole of the amount is paid through Modvat credit. Therefore, the ratio of the above decisions relied upon by the appellants is not applicable to the facts of the present case.

8. The Commissioner (Appeals) allowed the refund by way of credit of only Rs 7,61,120.00 and in respect of the remaining amount, the matter was remanded to the Adjudicating authority. The Adjudicating authority while allowed the refund of the whole amount after scrutiny of the record, the claim was also pre-audited. After verifying the relevant record, the refund was allowed. Therefore, now it cannot be said that the Assistant Commissioner has not gone into the merits of the case as per the directions of the Tribunal. In this situation. I find no infirmity in the impugned order whereby the refund was allowed to Cenvat account. However, the impugned order is modified to the extent of that appellants are entitled for the refund of Rs. 8,17,694 through Cenvat account. The appeal is disposed of as indicated above.

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