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2023 (10) TMI 1251 - AT - Central ExciseRecovery of credit of duty paid on inputs precluding entitlement to the benefit of notification no. 30/2004-CE dated 9th July 2004 - manufacture of several articles of ‘wool’ and of ‘polyester’ - recovery pertaining to entitlement to notification no. 30/2004-CE dated 9th July 2009 which was sought to be interpreted as intended only for assessees who lacked specified facility which to the appellant could not claim - refusal to entertain application of refund of ₹ 1,19,37,987 remitted as ‘deposit’ for July 2004 to February 2009 during pendency of dispute. Recovery of credit of duty paid on inputs precluding entitlement to the benefit of notification no. 30/2004-CE dated 9th July 2004 - HELD THAT:- It is not open to the authority empowered under section 11B of Central Excise Act, 1944 to dispose off a claim for refund on grounds of such being premature in any circumstance whatsoever. As the competent authority has not considered the eligibility for refund except at the threshold, it would only be appropriate to restore the claim before the original authority for fresh disposal. Dis-entitlement of the appellant to benefit of notification no. 30/2004-CE dated 7th July 2004 for non-compliance with the substantive condition of eligibility owing to which demand of ₹ 22,07,315 was confirmed in relation to availment of exemption for the period from September 2008 to February 2009 - HELD THAT:- The remand order of the Tribunal is specific as is the report of the jurisdictional central excise authorities. However, the order of the original authority that was before the first appellate authority to culminate in the impugned order predates the remand ordered by the Tribunal and the defence thereof was not before the original, or first appellate, authority. Eligibility to benefit of notification no. 30/2004-CE dated 9th July 2004 owing to reversal of credit - HELD THAT:- The factual aspects of eligibility – both by reversal of CENVAT credit as well as existence of facility for manufacture of ‘staple fibre’ in the light of decisions of the Tribunal – have not been examined by the lower authorities. With the claim for refund restored to the original authority and with these two aspects having to be examined afresh, the issues would have to be go back for re-adjudication. Accordingly, the impugned order is set aside and all the disputes restored to the original authority for a fresh determination.
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