9 F.No: V2(16)103/Ahd-I/12

3. Assistant Commissioner, Central Excise, Division-I, Ahmedabad-1

O.-- The Superintendent (System) Central Excise, H.Q Ahmedabad-1 fori uploading

the order on website.

5. PA to Commissioner (Appeals-V)

6. Guard File

8 F.No: V2(1thd - 1/12

refund claim was filed by the appellant for the period from 1986-87 to 14.04.1989.

Aggrieved with the 01A, appellant had preferred an appeal bearing No. E/1091/07 to

CESTAT only in respect of the amount of refund which was ordered to be credited in

RG23A Part-II account and not refunded in cash. The issue of interest was not agitated

before CESTAT, hence the issue has reached finality and the same cannot be agitated

before me as the order has become `non-est' with the appeal filed. Once the

Commissioner (Appeals) has taken a view and same is not set aside by higher authority, I

being the same authority cannot review the same unless the same is agitated and set

aside by higher authority. In view of the above, there is no reason for me to interfere

with the impugned order. The citations in the case of Indu Nissan Oxo Chem.Indus.Ltd.,

reported in 2007(211) ELT 254 and 2011-TIOL-105-SC-CX in the case of Ranbaxy

Laboratories Ltd does not help appellant and the appeal is liable to be set aside.

Order

7. I therefore uphold the impugned order and reject the appeal.

(ANIL KUMAR)

COMMISSIONER (APPEALS-V),

CENTRAL EXCISE, AHMEDABAD.

ATTESTED Date .31 /12/2012

(S.J. Dias) 31 b2-')24"/2----

SUPERINTENDENT (APPEALS-V) CENTRAL EXCISE, AHMEDABAD-I.

To

M/s Cadila Veterinary,

C/o Cadila Healthcare Ltd,

Plot No 417-419, 420 (Part),

National Highway No.8A, Sarkhej Bavla Road,

Village Moriaya, Tal Sanand,

District Ahmedabad

Copy to:

1. The Chief Commissioner, Central Excise, Ahmedabad Zone, Ahmedabad 2. The Commissioner of Central Excise, Ahmedabad-I,

7 F.No: V1 2(16Ahd-I/12

"However, from the records, I do find that out of the total duty aid, an amount

of Rs.19,38,750/-was paid through modvat account. In the clai paper also the

appellant had declared that they had paid duty through RG-23 part-II account.

Therefore this amount cannot be refunded in cash. The RG-23 art-II account is

not a bank account nor that register is a pass book. Therefore, d ty debited from

this account in terms of modvat scheme and the rules made there under cannot

be refunded in cash. Such credit ought not have been utilized towards payment

of duty for those products which in law are finally treated as exempt. At best this

amount can be raised in their modvat account for subsequent use if otherwise

admissible and which would be according to law. I do n agree to the

arguments of the learned advocate on this point that for recovering inadmissible

credit, separate proceeding should be initiated in terms of

assessment is so inter-related that it had to be restored

Rule 57 I. The

on account of

finalization of on going dispute. It is not only collateral, rather is fully inter-

connected with the issues. Since there was no provision for interest prior to

1995, the interest amount is not admissible to the appellant for such claims.

The amount of Rs.1,83,274/- have also to be deducted as had keen worked out

in the report of D.C. dated 5.8.02 and for which the appellant hlad agreed. Thus,

the refund amount admissible for payment in cash would be Rs.63,48,964/- and

the amount of Rs.19,38,750/- by way of raising credit in RG-23 Part-11 account.

Before parting with the case, I should not fail to observe that very long time

had been consumed in not sanctioning the rightful claims f the assessee,

therefore, now no time say more than 2 moths should be cons med in drawing

and paying the amount to the appellant on part of the lower authority."

6.3. On going through the above order, I find that the entire refund claim amounting

to !84,70,988/- arising out of 010 No 158-R and 159-R both dat d 19.11.98 was

decided by the Commissioner (Appeals)'s order issue vide OIA No.285 2007(Ahd) dated

22.6.07. Out of this' 1,83,274/- was deducted and '63,48,964/- wa allowed by cash

and '19,38,750/- was allowed by raising credit in RG-23 Part-II accoun . In present case

before me the appellant had filed refund claim of Z 44, 28, 444/- as ai interest for the

delayed payment of refund of Z 63, 48, 964/- sanctioned vide 010 No.29/AC/2007/Ref.

dated 24.10.2007 from the period of 19.02.1999 till 24.12.2007. I ind the issue of

interest on this amount was already decided by the Commissioner Appeals)'s order

(supra) that there was no provision of interest prior to 1995. I find that the original

6 F.No: V2(16kAhd-I/12

3. There after the appellant filed refund claim of 49, 31, 319/- as an interest for

the delayed payment of refund of 63, 48, 964/- sanctioned vide 010

No.29/AC/2007/Ref. dated 24.10.2007 from the period of 19.02.1999 till

24.12.2007.The claim of the appellant was rejected by the adjudicating authority vide

the impugned order under the provisions of Section 11B of the Central Excise Act, 1944.

4. Aggrieved by the impugned order the appellant has filed the present appeal on

the following grounds

• That the impugned order is incorrect and not maintainable.

• That the once the appeal was allowed and matter remanded back the

effect is as if the order does not exist.

• That the adjudicating authority has erred in denying the interest on refund

as the refund is admissible within three months from the date of

application is made and does not relate on the date which duty demand

relates. Though Section 11BB comes into effect from 1995 application for

refund in the present case was made much after 1995 i.e. on

14.08.1998.Thus contention taken by the Commissioner (Appeals) that

interest cannot be provided as there is no provision of interest prior to

1995 is incorrect and not maintainable in law. They also relied upon

decision in the case of Indu Nissan Oxo Chem.Indusltd., reported in

2007(211) ELT 254.

5. Personal hearing in the matter was held on 08.11.2012 & 27.12.2012.The

appellant appeared before me and reiterated the grounds of appeal on 27.12.2012.They

reiterated submission made by them and gave written submission and copy of citation

2011-TIOL-105-SC-CX in the case of Ranbaxy Laboratories Ltd.

6. I have gone through the facts on record, the appellant's submissions and my

findings are given below.

6.1. The issue before me is whether the appellant is entitled for the interest for

delayed refund claim?

6.2. I find that the issue of interest was already decided by Commissioner (Appeals)'s

order issue vide OIA No.285/2007(Ahd) dated 22.6.07. For sake of ease the Para No.25 is

reproduced as under:

1 03

5

F.No: VV16kAhd-I/12

appellant has filed appeal before Commissioner (Appeals) and the said authority has

decided the issue vide OIA No.285/2007(Ahd) dated 22.6.07. Complying he said OIA the

Assistant Commissioner sanctioned the refund claim of 263,48,964

allowed Z 19,38,750/- by way of Credit in RG 23 Part II acc

no.29/AC/REF/2007 dated 24.10.2007. Being aggrieved with the OIA N o

dated 22.6.07, the Department again filed appeal before Hon'ble

appellant also filed an appeal before Hon'ble CESTAT challenging the o r

Commissioner allowing the credit in RG 23 Part II account. CES

No.A/1100-1101/WZB/AHD/2008 dated 27.05.2008 held as under:

- in cash and

unt vide 010

285/2007(Ahd)

ESTAT and the

der of Assistant

AT vide Order

of M/s. Guari t there is no bar ssee is able to

if disputed duty out of the PLA

ing Authority to

fund claim of ight of the law gly, appeal filed al is rejected."

"We note that the Larger Bench of the Tribunal in the cas

Plasticulture (P) Ltd. [2006 (202) E.L.T. 199 (Tri.-LB)] has held th in allowing the refund of such credit in cash provided the ass establish that on account of the use of such credit for payment and now refunded amount, they were compelled to pay the du during the period. As such, we would like the original Adjudica verify the above aspect and then decide the issue pertaining to r 19, 38,750/- ordered to be credit in modvat account, in the declared by the Larger Bench in the above referred case. Accordi

by the assessee is allowed by way of remand and Revenue's app

2.1. Complying the order of CESTAT, the original adjudicating au hority vide 010

No.13/AC/Refund/09 dated 22.9.09 has disallowed the refund and upheld the earlier

Order No. 29/AC/2007/Ref dated 24.10.07 of Assistant Commissioner f Central Excise,

Division-I, Ahmedabad-I under section 11B of the Central Excise Act,19

2.2. Aggrieved by the above 010 the appellant had filed appeal with the

Commissioner (Appeals) against the said 010 and the appellate autho

123/2010 (Ahd-I) dated 30.04.2010 set aside the said order and allowe

by appellant. Complying the order OIA No. 123/2010 (Ahd-1) dated

original adjudicating authority vide 010 No.15/AC/Refund/10 dated 2 2

the refund of Z 19, 38, 750/- in cash.

ity vide OIA No.

the appeal filed

30.04.2010, the

12.2010 granted

2.3. The Tax Appeal No.1841 of 2008 filed by the Department ag

Order No.A/1100-1101/WZB/AHD/2008 dated 27.05.2008 and is pre

the High Court of Gujarat. Similarly Appeal No.E/1204/2010 dated 30. 0

the Department against the OIA No. 123/2010 (Ahd-I) dated 30.04

presently pending with Hon'ble CESTAT.

inst the CESTAT

ently pending in

7.2010 is filed by

2010 and is also

4 F.No: V2(16)Ahd-1/12

ORDER-IN-APPEAL

The present appeal has been filed by M/s Cadila Veterinary, 244,

Godasar, Maninagar, Ahmedabad (hereinafter referred to as the appellant) against 010

N015/AC/Refund/2008 dated 31.12.2008 (hereinafter referred to as the impugned

order), passed by the Assistant Commissioner, Central Excise, Division-I, Ahmedabad —1

(hereinafter referred to as the adjudicating authority).

2 Briefly stated that facts of the case are that the appellant were engaged in the

manufacture of excisable goods viz Animal Feed Supplements falling under Chapter 23

of the CETA attracting duty at nil rate. The said product was provisionally assessed and

the classification thereof finalized vide 010 No. 13/97 dated 10.7.97 under Chapter 29 of

the said act. Aggrieved thereupon, the appellant had filed an appeal before

Commissioner(Appeals) and, the said appellate authority vide 010 No. 76/98 held the

classification of the said product under Chapter 23 of the said act attracting Nil rate of

duty. Accordingly, the appellant had filed two refund claims for duty paid by them

under protest. However, the Jurisdictional AC had rejected both the claims vide 010 No

158-R and 159-R both dated 19.11.98 for 77,24,928/- & 7,46.060/- totaling to

284,70,988/- . The appellant again approached Commissioner (Appeals) against the said

010s, and the said appellate authority vides OIA No. 1046-1047/02 dated 21.8.02

allowed the appeals with consequential relief. Department had filed appeal before

Hon'ble CESTAT against the order passed by the said appellate authority. Hon'ble

CESTAT vide Order No.11/2201-02/WZB/2003 dated 29.8.03 remanded back the matter

to the adjudicating authority for deciding the case afresh. Thereafter, the case was

decided in denovo proceedings by original adjudicating authority vide 010

No.40/2004/DA/Ref dated 26.3.04 rejecting the refund claim. The appellant again filed

appeal with Commissioner (Appeals) against the said 010 and the said appellate

authority vide OIA No. 89/2005(Ahd-I) dated 6.5.05 has set aside the order and

remanded back for denovo. Thereafter, the appellant filed SCA No.22466/2006 in the

Hon'ble High Court of Gujarat. The Hon'ble Court vide order dated 5.2.07 has directed

the original authority to comply with the directions of Tribunal and Commissioner

(Appeals) and give fresh findings within two months. As per the direction of Hon'ble

Court the original authority again decided the matter by rejecting the claim vide 010

No.08/2007/AC/Ref dated 29.3.07 wherein it was held that in absence of any other

evidence except the invoices showing the composite price, cannot be made the basis for

holding that incidence of duty has not been passed on. Again aggrieved upon 010, the

3 4 -1 -u0-d- • Tift-U u161

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31-441-zr (f4r4d) 4 trtffli a) -Itzr

AErreft 316 4-iqlGi1q-380016.

To the west regional bench of Customs, Excise & Service Tax Appellate Tribunal (CESTAT) at 0-20, New Metal Hospital Compound, Meghani Nagar, Ahmedabad : 380 016. in case of appeals other than as mentioned in para-2(i) (a) above.

14 till

316 41<1.41q 314-20,

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7FRA-r I X161 3 r-eliziacfroi 4 titufi3 r t I t8

500/— firft

The appeal to the Appellate Tribunal shall be filed in quadruplicate in orm EA-3 as prescribed under Rule 6 of Central Excise(Appeal) Rules, 2001 and shall be ac ompanied against (one which at least should be accompanied by a fee of Rs.1,000/-, Rs.5,000 - and Rs.10,000/- where amount of duty / penalty / demand / refund is upto 5 Lac, 5 Lac to 5 Lac and above 50 Lac respectively in the form of crossed bank draft in favour of Asstt. Reg star of a branch of any nominate public sector bank of the place where the bench of any nominate public sector bank of the place where the bench of the Tribunal is situated. Application ma for grant of stay shall be accompanied by a fee of Rs.500/-.

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----41 -444WT0-1 Tf ct 314M TIT M-7-ft?1 sflci-, H ci,11,341q-if+-zn- ,-11d1 * I

In case of the order covers a number of order-in-Original, fee for each O.I.O. should be paid in the aforesaid manner not withstanding the fact that the one appeal to he Appellant Tribunal or the one application to the Central Govt. As the case may be, is filled to avoid scriptoria work if

excising Rs. 1 lacs fee of Rs.100/- for each.

(4) -Nic,Ri -u-- 5 31-fili 1970 TIT #71414a Mt 3TTP-1 t 31 c1 4 d -1FT 3 ilTiT7 341 30q -I TITcK

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ft chd c-HII 4 ,-tl- -T'r I

One copy of application or O.I.O. as the case may be, and the o der of the adjournment authority shall beer a court fee stamp of Rs.6.50 paise as prescribed nder scheduled-I item of the court fee Act, 1975 as amended.

30 sdo14-d TriTra-). 4 filui cl, ,,) uk4 fkq-it 4 30 .11t arri 3T -rwfitff

,\I-,-1) -zr \3o-1iq-1 arch - ci , )clicr) ,- 3141ATI :(1-LfT-14T7u1 (4-3TTEn14) ftTili, 1982

Attention in invited to the rules covering these and other related matter contended in the Customs, Excise & Service Tax Appellate Tribunal (Procedure) Rules, 1982.

(5) \3-1

f4ffu 1

In case of rebate of duty of excise on goods exported to any country or territory outside India of on excisable material used in the manufacture of the goods which are exported to any country

or territory outside India.

TT TRTF9- f f4-9-r AR-u -q-re (kcrrF Tir f4Zit-di rr +RI I ITI-F I

In case of goods exported outside India export to Nepal or Bhutan, without payment of duty.

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TNT 109 q7I- fkg-df 4 N -64

(d) Credit of any duty allowed to be utilized towards payment of excise duty on final products under the provisions of this Act or the Rules made there under and such order is passed by the Commissioner (Appeals) on or after, the date appointed under Sec.109 of the Finance (No.2)

Act, 1998.

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crrd-zA 1fik-d- 3Tr T gft 3Tr T fttT 4-ftd7 11F-3T-rkzr 4 31-rTr

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The above application shall be made in duplicate in Form No. EA-8 as specified under Rule, 9 of Central Excise (Appeals) Rules, 2001 within 3 months from the date on which the order sought to be appealed against is communicated and shall be accompanied by two copies each of the 010 and Order-In-Appeal. It should also be accompanied by a copy of TR-6 Challan evidencing payment of prescribed fee as prescribed under Section 35-EE of CEA, 1944, under Major Head of Account.

(2) ;c.r) -FTR:q Zif cbq er 7r -Fair 200/—

Q1N sisY ct-) l000/— . `"r i T-r-d-rff c6) I

The revision application shall be accompanied by a fee of Rs.200/- where the amount involved is Rupees One Lac or less and Rs.1,000/- where the amount involved is more than Rupees One

Lac.

,-1) 4TT cTM t7-ThR4 \30-11q 31-cfrAT1 qit 3711-0:—

Appeal to Custom, Excise, & Service Tax Appellate Tribunal.

(1) \3d-li4-1 3114-ftPi, 1944 ,6) ITT 35—t/ *

Under Section 35B/ 35E of CEA, 1944 an appeal lies to

qe[im7uT 4--crrqict).-1 , -1Eif4-d• 741- Trrq-- err \3ci-114.-r 341-4114

c41 fftEr trd-Wf crrict) 3. 3TH. t. rr r cr-,1

(a) the special bench of Custom, Excise & Service Tax Appellate Tribunal of West Block No.2, R.K. Puram, New Delhi-1 in all matters relating to classification valuation and.

• 3.9M-TRIT (3P:ft-a-NT) ttzr .5c-1-1K G-1 qkci") *

tII cidiIci , ttizr .5c-Li le, 2.1c.-cil

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— 380015.

d- t.4 sio - ..tt. 1 ,<1

-T cFro , --k...Lii : File No : V2(16) 103/Ahd-l/2012

Stay App.:

3TtF 3.TFT ' -i•--LI I Order-In-Appeal No.123/2012(Ahd-1)CE/AK/Commr(A)/Ahd

ft-42rT Date :28.12.2012 7t cf-P') 4 -ffitR31 Date of IssUe (7 I CI . ?",C6

41 31f4g Tdiii_z-TrEfor (3T -V) TAT zrrf -

Passed by Shri. Anil Kumar, Commissioner (Appeal-V)

Tr 4-1,Rici-, /TiRT/31-ErT 3171U, ltF.-I ThrzT \3c -k-iiq U, - • 31-9-0-71 TRI --rtr

v 31TOT Ti 15/Ac/Refund/200 8 ft9-1T : 31.12.2008 •t -1

Arising out of Order-in-Original No.15/Ac/Refund/2008 Dated . 31.12.2008

Issued by: Assistant/Deputy Commissioner,Central Excise,Divlision - I Ahmedabad-I.

u 30)rict)c11 4)1 9P1 krq uldl Name & Address of the Appellant / "espondent

M/s Cadila Veternary Ltd.

Ahmedabad

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Tr7 -fl.&-TA31-fr ct,131 -tra. TIT ii-9taTur VTST

Any person a aggrieved by this Order-In-Appeal may file an appeal or revision application, as the one may be against such order, to the appropriate authority in the following way :

49TR-d st-Nct)N alur Revision application to Government of India :

(1) Th -4rzic41 c 31-1411:1, 1994 qTRT 3 c c 6T-d17 URI Ohl

i;p-TA -g9ta-Tur 341 q•-( 3T ‘1k <P1 %11 r“.1, I ■3-H-cl

fo-Fr mil rIT-4ft : 110001 - rit7

(i)A revision application lies to the Under Secretary, to the Gov . of India, Revision Application Unit

Ministry of Finance, Department of Revenue, 4 th Floor, Jeevan Deep Building, Parliament Street, New

Delhi - 110 001 under Section 35EE of the CEA 1944 in respect of the following case, governed by first

proviso to sub-section (1) of Section-35 ibid :

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(ii)In case of any loss of goods where the loss occur in transit from a factory to a warehouse or

to

another factory or from one warehouse to another during the course of processing of the goods in a

warehouse or in storage whether in a factory or in a warehouse.

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