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2018 (4) TMI 1155 - AT - Central ExciseRefund of unutilised CENVAT credit - matter remanded on the ground that Revenue has submitted additional grounds/ evidences which were not submitted before the adjudicating authority, in terms of Rule 5(b) of Central Excise (Appeals) Rules, 2001, therefore, matter is to be reconsidered by the adjudicating authority - Held that: - in terms of Rule 5 of Central Excise (Appeals) Rules, 2001, the additional evidences placed before the Id. Commissioner (Appeals) are not admissible and the same cannot be the ground for remand the matter back to the adjudicating authority. Refund claim - closure of factory - CENVAT credit - Held that: - at no stage, it has been questioned to the appellant that for denial of Cenvat credit which are not entitled to them. Moreover, the Revenue collected the duty from the appellant. Although the Revenue was of the view that activity undertaken by the appellant does not amount to manufacture. At the stage of filing of refund claim, Revenue cannot correct their wrong doings. The issue of non-entitlement of Cenvat credit cannot be raised at the stage of entertaining refund claim without challenging the availment of Cenvat credit. Commissioner (Appeals) was not required to consider the appeal filed by the Revenue but chose to send the matter back to the adjudicating authority, which is not permissible in law - the order of the adjudicating authority for allowing the refund claim restored - appeal allowed.
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