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2015 (2) TMI 381 - CESTAT NEW DELHIDenial of excess claim of refund - area based exemption under Notification No. 56/2002-CE in the State of Jammu & Kashmir - Held that:- Though during February 2006 to April 2006 period, the appellant for whatever reason, did not take Cenvat credit of ₹ 10,72,419/- in respect of SAD resulting in higher quantum of exemption under Notification No. 56/2002-CE and thus higher quantum of refund, in December 2006 as soon as this was pointed out, they took the Cenvat credit of this amount, as a result of this in the month of December 2006 their refund claim was lesser to that extent. Thus, overall there was no excess availment of exemption under Notification No. 56/2002-CE, as the excess quantum of refund under Notification No. 56/2002-CE during February 2006 to April 2006, was neutralized by lesser quantum of refund under this notification during December 2006. - Assessee did not take the available Cenvat credit during the period it was available and paid the excess from the PLA and took the refund thereof. Later on, they took Cenvat credit which was available and paid less duty. In that case, the excess refund availed by the assessee during the initial period was sought to be denied. In that case, this Tribunal held that it is situation of revenue neutrality, therefore denial of refund is not sustainable. Fact of non-availment of Cenvat credit was in the month of December, 2006 itself and no show cause notice has been issued by invoking extended period of limitation. The same is also required to be issued by invoking extended period of limitation. - show cause notice is barred by limitation as well as the appellant succeeds on merit as it is a revenue neutral situation as per the decision of this Tribunal in the case of New India Wire and cables. - Decided in favour of assessee.
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