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2022 (5) TMI 1108 - AT - CustomsRefund of SAD - only ground for rejection of refund given by the adjudicating authority is that the amount of SAD paid by the appellant by way of debiting in MEIS scrip and that no declaration was found on the sale invoice regarding non admissibility of cenvat credit of SAD - HELD THAT:- The issue that whether the refund is admissible when an assessee paid the SAD by debiting MEIS has been settled in the judgment of ALLEN DIESELS INDIA PVT. LTD. VERSUS UNION OF INDIA & ORS. [2016 (2) TMI 247 - DELHI HIGH COURT] where it is clear that even if the assessee does not pay the SAD amount in cash but the same is debited in any incentive scrip, in the aforesaid case the same was debited from DEPB, the refund of SAD cannot be denied - The same analogy is applicable in the present case as the amount of SAD was debited in MEIS scrip. Therefore, the issue is clearly covered by the afore said judgment. As regard the issue that whether for not making the declaration of invoice as required in para 2(b) of Notification No. 102/2007-Cus the refund is admissible or otherwise, the Larger Bench judgment of this tribunal in the case of CHOWGULE & COMPANY PVT LTD VERSUS COMMISSIONER OF CUSTOMS & CENTRAL EXCISE [2014 (8) TMI 214 - CESTAT MUMBAI (LB)] has dealt with the same issue where it was held that even if no declaration is made for that reason the refund cannot be denied - The aforesaid judgments on both the issue were placed before the commissioner (Appeals). However, despite refering the said judgments, the matter was once again remanded to the adjudicating authority which was absolutely not warranted on the part of the Commissioner (Appeals). Learned Commissioner (Appeals) should have decided finally as there was nothing left for the adjudicating authority to decide further. The appellant is clearly entitled for the refund - appeal allowed - decided in favor of appellant.
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