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2022 (9) TMI 1122 - AT - Central ExciseRefund of unutilized/accumulative Cenvat credit - inputs used in manufacture of goods exported under bond to a SEZ unit - quarter of April 2008 to June 2008 - Rule 5 of Cenvat Credit Rules, 2004 read with Notification No. 05/2006 dated 14.03.2006 - HELD THAT:- There is no denial to the fact that the assessee/respondent has cleared its final product to SEZ unit i.e. from DTA to SEZ and accordingly, the transaction in question admittedly was export of finally manufactured goods. The impugned refund claim along with the connected documents for the Quarter April 2008 to June 2008 was filed within the time limit of one year stipulated under Section 11B of Central Excise Act, 1944 - Since the refund claim pertains to the refund of Cenvat credit, the same was out of the bar unjust enrichment in terms of para C of provision to Section 11B(2) of Central Excise Act, 1944 - The appellant was entitled for the impugned refund. The Commissioner (Appeals) has held the order of Original Adjudicating Authority to have been beyond the scope of show cause notice, it is observed that in the show cause notice, refund claim was proposed to be rejected on the ground that the issue is dependent on the outcome of the judgment of the Hon’ble Gujarat High Court in ESSAR STEEL LTD. VERSUS UNION OF INDIA [2009 (11) TMI 141 - GUJARAT HIGH COURT], whereas, the Original Adjudicating Authority has rejected the claim not only on the said proposed ground but also on the ground that the amount of Cenvat credit availed on imports during the relevant quarter April 2008 to July 2008 was set off against the duty paid on the goods cleared during the said quarter, where after only an amount of Rs. Rs.2,16,37,636/- was available to the appellants against the refund claim of Rs.27,40,82,605/- - There is no error committed by Commissioner (Appeals) when the O.I.O has been held to have been passed on some extraneous factors which were neither proposed in the show cuase notice nor were related to the issue. The appeal of Revenue is dismissed.
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