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2023 (6) TMI 1239 - AT - Central ExciseRefund of Cenvat credit - Sugar cess - rejection on the only ground that the matter is pending and has not attained finality - HELD THAT:- The appellant has produced records, to show that the appeal filed by the revenue against the Tribunal’s order dated 07.08.2019 is pending before the Hon’ble High Court at Calcutta in CEXA 9/2020 and there has been no orders passed by the Hon’ble High Court granting stay of operation of the said order of the Tribunal. The revenue department has not been able to produce any document to show that the order has been stayed by any higher authority. Under this factual background, both the lower authorities were not correct in rejecting the refund claim of the appellant on the ground of pendency of proceedings when no stay has been given by any higher court in the earlier order regarding eligibility of Cenvat credit. It is further noted that the Ld. Commissioner (Appeals) had also passed orders on various other grounds which was never alleged while issuance of the show cause notice and thus the appellate order to that extent goes beyond the allegations raised in the SCN and cannot be sustained on this ground also. Appeal allowed.
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