The refund claim under Central Excise Act was dismissed by the Customs, Excise & Service Tax Appellate Tribunal Allahabad due to the revised capacity determination.
Facts
Appellant filed the declaration for fixing annual production capacity (ACP) under Section 3A of the Central Excise Act, 1944. The Commissioner fixed the ACP provisionally and the appellant started depositing a sum of Rs 20 lakhs against the duty liability to be determined in terms of the provisions of Induction Furnace Annual Capacity Determination Rules, 1997. The amount was deposited pro-rata during the period September 1997 to June 1998. The Commissioner determined the ACP as 43174.72 MT and Monthly Duty Liability of Rs 22,48,868/-.
Decision
The single member bench of Sanjiv Srivastava, Member (Technical) found that Appellant has opted to carry out his operations in terms of Section 3A of the Central Excise Act, 1944 as inserted by the Finance Act, 1997 read along with the Induction Furnace Capacity Determination Rules, 1997 and Rule 96 ZO of the Central Excise Rules, 1944.
The bench noted that the entire proceedings in the matter are in respect of Application for Refund filed by the appellant under Section 11B of the Central Excise Act, 1944.
It was further noted that the tribunal has in order, held relying on the decision in the case of National Ceramic Works, held that the refund made under compounded levy scheme will not be governed by the provision of Section 11B.
“The present claim for refund has arisen on the account of Finalization of Annual Capacity of Production, in terms of sub-section 2 of Section 3A, which is lower than the provisional capacity fixed by the order 30.09.1997 and 21.03.1998. The Annual Capacity was fixed at 43174.72 MT and the appellant was paying the monthly duty accordingly. After successive round of litigations the capacity as determined by the order dated 21.03.1998 was revised to 32670.848 MT by the order dated 31.12.2010. This refund which has arisen on account of the above revision cannot be said to refund under the provisions of scheme of Section 3A. The order of Commissioner (Appeal) which has been made without taking the note of above facts cannot be upheld”, the tribunal observed.
The bench viewed that the request of the appellant for interest on the refund will have to be considered only in terms of Section 11BB of the Central Excise Act, 1944 and in the manner as prescribed by the said section.
Case title: M/s Jalan Castings Pvt. Ltd. v/s Commissioner of Central Excise, Varanasi
Citation: Excise Appeal No.70728 of 2019
