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2019 (2) TMI 7 - AT - Central ExciseRefund of CENVAT Credit - High Sea Sale - trading activity - credit was reversed to buy peace - common input/input services used in manufacturing as well as trading activity - non-maintenance of separate records - Held that:- It is the sale of goods which happens by way of transfer of document of title after the goods cross the Customs Barriers of the foreign nation but before they cross (enter) the Customs frontiers of India. Hence, when High Sea Sales take place outside the territorial waters, it cannot be understood how such sales can be considered as an exempted service (trading) so as to fall within the ambit of Rule 2(e) of the CENVAT Credit Rules, 2004 - There is no evidence to show that common input services have been used for such High Sea Sales. Further, possibly to buy peace with the Department, the appellant had reversed the CENVAT Credit voluntarily and is now contesting only the rejection of refund claim. Refund was rejected mainly on the grounds that the appellant did not exercise the option of reversing the proportionate Credit and that another SCN has already been issued to the appellant demanding the recovery of Credit as quantified under Rule 6(3)(i) of the CCR, 2004 for the very same disputed periods - Held that:- The appellant, as per the provision, reversed an excess amount of ₹ 8,38,752/-. This being so, the Department cannot reject the refund claim stating that they have not exercised any option. The conduct of reversing proportionate Credit is sufficient to show the intention of the appellant to exercise the option provided under Rule 6(3) ibid. Another ground for rejection is that a further Show Cause Notice dated 24.02.2016 has been issued to the appellant - Held that:- Merely because a Show Cause Notice has been issued or is pending adjudication, it cannot be said that any other appeal proceedings has to be kept in abeyance by the Commissioner (Appeals) or this Tribunal. This contention of the Department for rejecting the refund claim is without any legal basis. The impugned Order rejecting the refund claim cannot sustain - appeal allowed - decided in favor of appellant.
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