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2022 (3) TMI 933 - AT - Central ExciseRefund of CENVAT credit - distribution of credit in respect of advertisement services - reversal of credit made under protest - time limitation - unjust enrichment - Rule 7 of the Cenvat Credit Rules, 2004 - HELD THAT:- The rule as it existed at the material time has been interpreted by the Bangalore bench in the case of ECOF INDUSTRIES (P.) LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, BANGALORE [2009 (10) TMI 171 - CESTAT, BANGALORE] where it was held that The restrictions sought to be applied by the Department in this case in limiting the distribution of the Service Tax credit made in respect of the Malur Unit on the ground that the services were used in respect of the Cuttack Unit finds no mention in the relevant rules. As such, restricting the distribution of Service Tax credit in a manner as has been done by the impugned order of the lower appellate authority (original authority had approved of such distribution) cannot be upheld. In case the Department wants to place such restriction as is sought to be placed in the case, the rule is required to be amended. As per this decision, the reason for denial of cenvat credit in terms of the rule as it existed during the material time cannot be sustained. Time Limitation - unjust enrichment - HELD THAT:- The grounds raised by the learned AR on issue of limitation and unjust enrichment do not carry forward the case of Revenue as we observed that these grounds were never taken by the original authority - In view of the specific provisions in Section 11B, the refund claim by the appellant could not have been denied on these grounds. It is observed that when the Revenue seeks to deny the credit distributed by the input credit distributor to amongst more than one office unit, then the credit is sought to be denied in a particular unit. For whatever reason the same credit would be admissible to another unit to whom this credit could have been properly distributed even after the amendment made in 2012, i.e. the total credit distributed to all the units remained the same, the only question can be with regard to the correctness of the credit distributed to a particular unit. If credit is sought to be denied at one place, input credit distributor should have been asked to distribute this credit to the other unit. Since this credit is admissible either to unit or its sister concern, there are no merits in the argument advanced by the authorized representative on the unjust enrichment. The claim of learned AR that the debit made under protest and the communication of audit should be treated as an appealable order, cannot be acceded to. Appeal allowed - decided in favor of appellant.
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