MILTON LAMINATES LTD. Vs. CC

JUDGEMENT

(1.) THIS appeal is directed against the Order -in -Appeal dated 16.3.2005 wherein Order -in -Original rejecting the refund claim in cash is upheld.

(2.) THE issue involved in this case is that the appellants had imported some goods and filed bills of entry for assessment. The said bills of entry were assessed and the appellants produced DEPB license for the debit of duty amount payable against the inputs. The adjudicating authority did not accept the invoice value and enhance the same. On appeal the Commissioner (Appeals) upheld the order of the adjudicating authority. On appeal against the assessment the Tribunal accepted the contention of the appellants and reduced the assessable value. Due this reduction in assessable value the appellants have debited Rs. 4,49,253/ - in excess in DEPB. The appellants filed a refund claim of this amount from the authorities in cash. The adjudicating authority vide its Order -in -Original dated 29.6.2004 allowed the refund and sanctioned a refund claim of Rs. 4,49,253/ - but directed the appellants to re -credit the same in DEPB license under which duty was debited. He rejected the appellants' contention for getting the refund in cash. On appeal the Commissioner (Appeals) upheld the order on identical grounds. Hence, this appeal.

(3.) LEARNED Advocate appearing for the appellants submits that DEPB license which was wrongly debited by the authorities has deprived him of the benefit of cash inasmuch as (sic) the appellants would have sold DEPB with higher amount of duty, they were deprived of selling this till the decision is given in their favour. It is his submission that they cannot avail of the benefit of DEPB credit as the said license has expired. He also refers to Section 27 which says that refund is allowable to the assessee, if the amount is paid. It is submission that once the DEPB is debited that means they have paid the amount of DEPB.