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2015 (4) TMI 850 - AT - Central ExciseValidity of the amending Notification 19/08-CE dt.27.3.08 and Notification 34/08-CE dt.10.6.08 - Refund claim - whether the appellant would be eligible for full refund of duty paid through PLA in the manner specified in this notification or whether this benefit of notification is restricted to the duty payable on the value addition at the rate specified in the exemption notification or duty paid form PLA in the manner specified in this notification, whichever is lower - Held that:- High Court vide its order dated 12.4.2012 in respect of writ petition has ordered that --- implementation of the notification under challenge shall await the result of LPA as is pending judgement dated 23.12.2010 . In our view pending decision of LPA, the department cannot implement amending Notification 19/08-CE dt.27.3.08 and Notification 34/08-CE dt.10.6.08 which have been challenged by the appellant before the High Court. Therefore, appeal filed by the appellant against the Assistant Commissioner s order rejecting the refund claim, cannot be said to be premature. The Commissioner (Appeals) should have disposed of the appeals after decision of the LPA filed by the department against the High Court s judgement in the case of Reckitt Bencksier (India) Ltd. (2010 (12) TMI 237 - JAMMU AND KASHMIR HIGH COURT), and he should have kept the appeals pending till the decision of the LPA and he could not dismiss them as premature. - impugned order is set aside and the matter is remanded back to the Commissioner (Appeals) to decide the disputed refund claim of education cess and S&H cess in respect of the appellant s plea that they have not taken self-credit of education cess and S&H cess, therefore the question of its recovery does not arise. - Decided in favour of assessee.
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