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2021 (12) TMI 672 - AT - Central ExciseRefund of CENVAT Credit - the payment was made with reference to the audit objection - whether the appellant’s payment of Cenvat Credit is attained finality in terms of Section 11A (2) of Central Excise Act, 1944? - HELD THAT:- There was no agreement by the appellant and in the column of department conclusion is that the Jurisdiction Assistant Commissioner/Jurisdiction Range Officer was supposed to issue show cause notice. It is clear that the payment made by the appellant was deemed to be provisional and not final to attract provision of Section 11A (2) of Central Excise Act, 1944. The appellant have made the payment with reference to the audit objection, however, in the said letter it is not mentioned that the case be settled and show cause notice be waived in terms of Section 11A (2) of Central Excise Act, 1944. Whether the appellant is required to file appeal with reference to the audit objection and payment made by them? - HELD THAT:- Firstly, the payment made by the appellant was not the final payment hence, the same cannot be a part of the assessment. Secondly, there is no assessment by the department which needs to be challenged. As per the audit proceeding, the department was supposed to issue show cause notice which it failed to do so, therefore, there is no occasion and reason for appellant to file appeal before the Commissioner (Appeals). The only remedy is to claim the refund of such payment made as per the objection raised by the audit. As regard, the judgment relied upon by the appellant it is settled that unless and until the payment along with interest is made by the assessee and the same is intimated specifically in writing to the department, the case cannot be closed under Section11A (2) of Central Excise Act, 1944. The appellant’s refund needs to be processed in accordance with law - Appeal allowed - decided in favor of appellant.
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