INDIA CEMENTS LTD. Vs. COMMISSIONER OF CENTRAL

JUDGEMENT

(1.) THE appellants are challenging the correctness of the Order -in Appeal No. 27/2007 (H -III) CE dated 10.03.2007 by which the sanctioned refund claim of the assessee was adjusted towards the arrears claim. It is the contention of the appellants that the refund claim cannot be adjusted with the arrears claim. It is pointed out that the claim of refund has been upheld by the Hon'ble High Court of Andhra Pradesh against the rejection of refund claim by Civil Appeal No. 5340 -5341 of 2000 in the light of the Hon'ble Supreme Court's judgment rendered in the case of Vikram Cements Ltd. v. CCE, Indore reported in 2006 (197) ELT 145 (S.C.). The Revenue proceeded against the appellants on the ground that the refund claim is hit by bar of limitation under the provisions of Section 11B of the Central Excise Act, 1944. It is the contention of the appellants that the limitation under the above provisions is not applicable as the matter was under litigation and more over the eligibility to credit in question was finally settled in favour of the assessee by the order of the Andhra Pradesh High Court. In this regard, the Tribunal's Larger Bench judgment rendered in the case of Shankar Novelties Glass Industries v. Collector of Central Excise is relied on. The Tribunal in Para 3 of the above cited order has clearly said down that once the refund has been sanctioned in terms of the High Court's judgment, then the question of reopening the matter and bar of limitation does not arise.

(2.) HEARD both the sides in the matter.

(3.) THE learned Consultant submits that the refund became due to the appellants in terms of the order of the Andhra Pradesh High Court in the Civil Appeal No. 5340 -5341 of 2000 and thereafter the sanctioned refund was adjusted against the arrears claim which is not sustainable. It is the submission that provisions of Section 11B of the Central Excise Act, 1944 is not applicable as the original claim was filed by the assessee within time and the matter had been adjudicated by the Original authority. He followed the order of the Andhra Pradesh High Court without application of period of limitation under Section 11B of the Act.