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2019 (2) TMI 853 - AT - Central Excise100% EOU - Refund claim - suo moto availment of CENVAT Credit - Rule 8(3A) of Central Excise Rules, 2002 - Held that:- The appellant did not pay the excise duty on the DTA sale for the period February 2012 to December 2012 to the extent of ₹ 26,14,940/- and on being pointed out, the appellant paid the duty on 15.2.2013 by using the CENVAT credit but the Department raised the objection of payment through CENVAT credit in view of Rule 8(3A) of the Central Excise Rules. Thereafter, the appellant paid the duty by cash and took re-credit of the CENVAT credit account, for which the Department issued the show-cause notice. Once Rule 8(3A) has been declared as unconstitutional which means that the payment made by the appellant on 15.2.2013 itself was correct and there was no requirement to pay the same again in cash but having been paid the same by cash again, the appellant is entitled to get back this amount paid by cash and as per the provisions of Section 142 of CGST Act, the appellant is entitled to get the refund in cash if the same arises on account of the litigation. Refund allowed - appeal allowed - decided in favor of appellant.
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