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2023 (7) TMI 1118 - HC - Central ExciseRefund - Refund was sanctioned by the lower authority pending the audit objection - Reversal of decision on the show cause notice till the final settlement of audit objection between the Department of Revenue and the Comptroller & Auditor General of India - refund of unutilised cenvat credit - HELD THAT:- The Tribunal ought to have considered the contentions as urged on behalf of the revenue on all the issues instead of confining the scope of the appeal merely on the ground of CERA objections, this more particularly considering the fact that the show cause notice itself was issued on 11th April 2007 which was certainly before closure of the objection, which was the first time recorded by the revenue by a communication dated 26th May 2008 addressed by the office of Commissioner, Central Excise, Raigad to the Assistant Registrar, Central Excise & Service Tax Appellate Tribunal - However, it is quite surprising that neither the appellant revenue nor the respondent had brought to the notice of the Tribunal such communication and as to what would be the effect and consequences thereof, more particularly in relation to the adjudication of the show cause notice dated 11th April 2007 and the reason for the appellant/Revenue to take recourse of the provisions of Section 11A read with Sections 11AC and 11B of the Central Excise Act, 1944. It is also clear that there could have been no warrant for issuance of the show cause notice in view of the subsequent developments which has been taken place after about 7 months of issuance of the show cause notice that is in view of the order dated 22nd November 2007 by which the revenue’s appeal against refund order itself came to be rejected. All these issues ought to have been raised and fell for consideration on rival contentions raised. Impugned order set aside - Matter restored back before the tribunal - appeal disposed off.
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