The Commissioner, Central Excise, Jaipur-II v. M/s.Rajasthan Spinning and Weaving Mills Ltd & Anr.

HON'BLE THE CHIEF JUSTICE MR.ARUN MISHRA HON'BLE MR.JUSTICE KAILASH CHANDRA JOSHI Mr.Ravi Bhansali, for the petitioner. _____ Heard on question of admission. The Assistant Commissioner, Central Excise and Service Tax Division, Chittorgarh passed an order rejecting the rebate claim of Rs.3,77,219/- filed by M/s. Rajasthan Spinning and Weaving Mills Ltd. Mayur Nagar, Lodha, Banswara for encashment but allowed to restore the amount paid by the assessee into their cenvat credit account from where the payment was made by them. The said order was set aside on appeal by the Commissioner, Central Excise (Appeals). A revision was filed by the assessee before the Government of India in the Ministry of Finance, Department of Revenue. The Government has observed that it was not disputed that the applicant paid excess amount and they were entitled to get the amount back in the manner it was paid. Reliance has been placed on the decision of Punjab & Haryana High Court passed in CWP Nos.2235 and 3357 of 2007 vide order dated 11.9.2008 in the case of M/s.

Nahar Industrial Enterprise vs. Government of India in which it was held with respect to the rebate/refund mode that in case, the petitioner paid lesser duty on domestic product and higher duty on export product which was not payable, it was entitled to 2 refund thereof in cash regardless of mode of payment of said higher excise duty. The petitioner was entitled to cash refund only of the portion deposited by it by actual credit and for remaining portion, refund by way of credit is appropriate. In the instant case, cash refund has not been ordered and refund by way of credit has been ordered. The order passed by the Government of India in revision has been questioned by the Commissioner, Central Excise, Jaipur-II on the ground that though the assessee was entitled to refund but there should have been an application in terms of Section 11-B of the Central Excise Act, 1944. Section 11-B has been considered by the Government of India while passing the order and reliance has been placed on the decision of Punjab & Haryana High Court.

Cash refund has been distinguished from the refund by way of credit. In the instant case, cash refund has not been ordered as contemplated under Section 11-B. The original order which has been restored, allowed refund by way of cenvat credit. We find no ground to interfere in the just order which has been passed as entitlement is not disputed. Resultantly, the writ application, having no force, is hereby dismissed. Stay application also stands dismissed. (KAILASH CHANDRA JOSHI), J. (ARUN MISHRA), CJ. S Phophaliya/-