COMMISSIONER OF CENTRAL EXCISE Vs. RAYMOND LTD.

JUDGEMENT

(1.) THE brief facts of the case are that the respondent availed Cenvat credit facility on the inputs and capital goods under Cenvat Credit Rules, 2002. They have utilized Modvat credit amounting to Rs. 4,77,121/ - which was not available as credit balance in their Cenvat account on the 15th and 31st day of August 2000 for payment of duty on clearances made during August 2000. The assessee however paid the excise duty on 19.08.2000 for the first fortnight of August 2000 and on 05.09.2000 for the second fortnight. As the debit, of duty in the month of August and September 2000 through Cenvat account was not correct in view of Rule 57AB(1)(b) of the Central Excise Rules, 1944, they paid the duty amount through TR -6 challan on 03.08.2002. They filed a refund claim in respect of duty paid on 19.08.2000 and 05.09.2000 through Cenvat credit. The same was sanctioned by the Deputy Commissioner and was upheld by Commissioner (Appeals).

(2.) THE learned J.D.R. submits that the refund claim was not admissible as it was time barred and refund can be sanctioned under Section 11B only as held by Supreme Court in Mafatlal Industries Ltd. v. Union of India . Further, in Prerna Cables Pvt. Ltd. v. Commissioner of Central Excise, Mumbai it was held that when credit availed earlier was reversed by the appellant under protest and Range Superintendent informed about such reversal then appellant was not entitled to score off the reverse entries. Reference was also invited to the Tribunal decision in the case of Century Rayon v. Commissioner of Central Excise, Mumbai -II in which also it was held that there was no provision for restoration of credit in Central Excise Act, 1944 and therefore the procedure as prescribed under Section 11B of Central Excise Act is to be followed.

(3.) I have considered the submissions made by both sides. I find that decision in the Mafatlal case is not relevant as the matter here to be decided is whether the restoration of credit is refund or not. I find that there are two Division Bench decision in the case of Vishakapatnam Steel Plant and Wipro Ltd. (cited supra) which hold that such restoration of credit does not require a refund application under Section 11B and they are just correction of entries in the account and in view of the same these decisions will prevail over the decision in the case of Century Rayon cited by the learned J.D.R. which was a single member decision.