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2018 (4) TMI 1165 - HC - Central ExciseRefund claim of excess credit reversed - Rule 6(3)(ii) of Cenvat Credit Rules, 2004 - Restoration of appeal before tribunal - Whether the Appellate Tribunal is justified in rejecting the refund claim on the ground that the Appellants have correctly reversed cenvat credit in terms of Rule 6(3)(ii) of Cenvat Credit Rules, 2004 inspite of the fact that the Appellants had never opted for any option provided in the rule and followed the procedure prescribed under Rule 6(3)(ii) read with Rule 6(3)(A) of CCR 2004? Held that: - The very fact that this credit was reversed, is an option exercised ipso facto. Hence, the reversal was correct. The question of excess duty having been reversed does not arise. The Adjudicating Authority does not have to produce any evidence. Relying upon Explanation1 to Rule 6(3), the order of the Adjudicating Authority was maintained. The Tribunal was expected, as the last fact finding authority, to render specific finding. We do not think that the case could have been disposed of even if the revenue involved was not substantial, by a mere endorsement of the Appellate Authority's finding, particularly on the interpretation of the Rule prevailing at the relevant time. The Tribunal is not expected to endorse legal findings by the Adjudicating Body/Authority and that of the First Appellate Authority. Since the Tribunal comprises of both a Judicial Official and an Administrative Member, it is expected to apply its independent mind and particularly on the question/issue of interpretation of the Rule. This has precisely not been done in the instant case. Appeal of the assessee restored to the file of the Tribunal for a decision afresh on merit and in accordance with law - appeal allowed.
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