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2022 (5) TMI 1116 - AT - Central ExciseRefund of CENVAT Credit - education cess and secondary higher education cess paid on total custom duty when both the duty were exempted against the CVD - only ground for claim of refund of the appellant is that the period of taking credit as beyond the normal period - N/N. 13/2012-Cus and 14/2012-Cus dated 17.03.2012 - HELD THAT:- In the present case it is not a case of demand but the appellant have paid the amount of cenvat credit accepting their mistake that the cenvat credit in respect of CVD of the custom duty is not admissible. This issue was raised by the audit and consequently the appellant have paid the amount. It is pertinent to note that the issue of non availability of the cenvat credit has been decided by this Tribunal in the case of NIRMA LIMITED, SAURASHTRA CHEMICALS DIVISION OF NIRMA LTD, MAC PAPER MILLS, ACULIFE HEALTHCARE P LTD, NILKANTH SPECIFIC FAMILY TRUST VERSUS C.C.E. & S.T. -BHAVNAGAR AND C.C.E. & S.T. -VADODARA-I VERSUS THERMAX LTD [2018 (2) TMI 476 - CESTAT AHMEDABAD]. As per this judgment the appellant was not entitled for cenvat credit. Therefore as per the merit of the case the appeallant was not entitled for the cenvat credit. Accordingly, they have reversed the credit. It is also important to note that in the present case there is no demand involved the issue of extended period can be decided only in case of demand not in the case of the refund. The refund needs to be decided only on the merit whether the appellant was entitled for cenvat credit or otherwise. The demand notice issued under Section 11A which prescribes the time limit which is not the case hear. Therefore, the decision of the tribunal in the case of Nirma LTD. relied upon by the appellant is of no help to the appellant for the reason that the same related to demand of recovery of wrongly availed the cenvat credit. Whereas in the present case appellant have filed the refund claim and the refund was rightly decided on the merit that whether the appellant is entitled for cenvat credit or not. There are no infirmity in impugned order rejecting the refund - appeal dismissed.
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