1. The issue in this appeal is that the appellant have a sugar mill and have cleared Bagasse and Press Mud and have paid duty by way of reversal under the provisions of Rule 6(3) of Cenvat Credit Rules, under protest for the period April, 2010 to August, 2012. Whether the refund claim filed on 13/06/2013 is time barred. The brief facts of the case are that for the preceding period August, 2009 to March, 2010 the appellant was clearing Bagasse. The Department was of the view that since the appellant have not maintain separate account and inventory of the inputs used in or in relation to manufacture of dutiable final output-sugar and molasses and exempted final product- Bagasse, in accordance with the provisions of Rule 6(3) of CCR, 2004, they would be required to pay an amount equal to 8% of the sale value of Bagasse. The demand for the said period was confirmed by the judicial Assistant Commissioner and the matter was sub-judice before the appellate authority. The said matter was finally settled by this Tribunal being order dated 08th June, 2012 reported at : 2014 (302) ELT 246 wherein it was held, as follows:-
"6.We have considered the rival submissions. We find that bagasse emerges in course of crushing of the sugarcane. It may be noted that crushing of sugarcane is necessary to extract canesugar juice which in turn is processed for production of sugar and molasses. Bagasse is the waste product left after the crushing of sugarcane. Therefore, by no stretch of imagination it can be said that the assessee possibly could have maintained separate accounts for the inputs for production of sugar and molasses (excisable item) and bagasse. Thus, in our considered view, the amendment in Finance Act, cited by Shri Sanjay Jain, AR and the Board's Circular would not make any difference in the facts and circumstances of the case. Moreover, neither the show cause notice nor the impugned order-in-appeal mentions as to which common Cenvat credit availed inputs have been used in manufacture of sugar and molasses (dutiable final product) and bagasse (exempted final product. Since Bagasse emerges at sugarcane crushing stage, there is no possibility of any inputs-chemicals, etc., having been used at that stage. Accordingly, we find merit in the contention of the appellant. The impugned order is set aside. The appeal and stay applications are allowed."
2. In order to avoid, further litigation and to also avoid the liability of interest by way of abundant caution, the appellant started reversing Cenvat credit under Rule 6(3) of CCR, 2004 upon clearance of Bagasse/Press Mud since April, 2010. This reversal was being made by them under protest, which is evident as they were contesting the issue before the appellate authority and also filed periodical refunds to this effect of the deposit/reversal of duty under protest.
3. After being successful before this Tribunal, as referred to hereinabove. The appellant filed refund claim on 13/06/2013 for the period April, 2010 to August, 2012. Thereafter, a show cause notice dated 06.09.2013 was issued proposing to reject the claim on the ground of time bar under Section 11 B of the Central Excise Act. In reply to the SCN the appellant again reiterated that they had reversed the duty under protest and hence limitation of one year under Section 11 B will not be applicable and further there is no prescribed limitation under Rule 6(3) of CCR, 2004. It is also urged that the CESTAT Order, as aforementioned was served to them on 11/07/2012 and from such date also the claim have been filed within the period of 12 months. However, the Assistant Commissioner rejected the refund application, observing that the protest by the appellant seized after final verdict of the Tribunal on the issue. Further, for the purpose of explanation- B (ec) to the Section 11B(5) of the Act, for computation of one year from the relevant date under Section 11B (1) is provided that the limitation of one year from the date of judgement/discussion/order or direction of the appellate Tribunal/Court. Accordingly, he held that the refund application was hit by limitation. Being aggrieved, the appellant preferred appeal before learned Commissioner (Appeals) who was pleased to uphold the findings of the Assistant Commissioner, rejecting the appeal.
4. Being aggrieved, the appellant-assessee preferred appeal before this Tribunal. The learned Counsel urges that as it have been held by the Hon'ble Tribunal, as aforementioned in their own case and also subsequently by Hon'ble Supreme Court in the case of Union of India Vs DSCL Sugar Ltd : 2015 (322) ELT 769 (SC) that Bagasse being only an agricultural waste and not being a result of any process, not covered in definition of manufacture under Section 2 (f) of the Act and there being no Chapter note or Section note in the Central Excise Tariff declaration process in respect of Bagasse as amounting to manufacture. Thus, notwithstanding the amendment in 2008 in Section 2 (d), creating a fiction of deemed marketability, Bagasse is not excisable, as it does not pass through the test of manufacture. Accordingly, whatever amount the appellant-assessee have paid by way of reversal is in the nature of revenue deposit and there is no limitation attracted for refund of such revenue deposit. The learned counsel also relies on the ruling of Hon'ble Allahabad High Court in the case of CCE Vs M/s Kisan Sahakari Chini Mills Ltd. reported at: 2014 (302) ELT 346 (All.) wherein also it have been held that Bagasse is not a manufacture item and hence not dutiable and does not attract Rule 6(3) of CCR, 2004. The learned counsel also states that under such facts and circumstances, the revenue should have suo-motu refunded the amount paid by them on clearance of Bagasse under the provisions of Rule 6(3) of CCR, 2004. Further, there is no question of any limitation being attracted. The learned counsel said that the courts below have erred in holding that limitation starts from the date of judgement in their appeal for earlier period, before the Tribunal being judgement dated 08/06/2012.
5. Heard the learned A.R. for revenue, who have relied on the impugned order.
6. Having considered the rival contentions, I hold that under the fact and circumstan
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ces that Bagasse is not a dutiable item and not a manufacturer item, as held by the Hon'ble Supreme Court, there was no question of any reversal of duty under the provision of Rule 6(3) of CCR, 2004. Under such facts and circumstances, I hold that the amount reversed by the appellant under Rule 6(3) of CCR was in the nature of revenue deposit. Further, it is an admitted fact that such amount was reversibly deposited under protest. Under these facts and circumstances, I set aside the impugned order and allow this appeal. I further direct the concerned adjudicating authority to grant the refund within a period of 45 days with interest, as applicable under the provisions of Section 11BB of the Act.