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2018 (11) TMI 349 - AT - Central ExciseClaim of refund - Cenvat credit was reversed based on Audit Objections but no show cause notice was issues - refund rejected on the ground that the assessment has not been challenged by assessee - Section 11B of the Central Excise Act, 1944 - Held that:- In the decision in the case of Aman Medical Products Ltd. [2009 (9) TMI 41 - DELHI HIGH COURT], the Delhi High Court has distinguished the Priya Blue [2004 (9) TMI 105 - SUPREME COURT OF INDIA] and Flock India [2000 (8) TMI 88 - SUPREME COURT OF INDIA] case and hold that if the service tax is paid on bona fide mistake then there is no need to challenge the assessment order - It was clarified in the case of Aman Medical products ltd. that the decision of the Apex Court in the case of Priya Blue Industries is applicable in a situation where there was a lis (contest) between the Department and the assessee at the time of assessment whereas in the instant case the amount was paid without contest. Therefore, the ratio of the decision in the Priya Blue Industries is not applicable in the present case. There is no assessment order passed in the present case. Therefore, the question of challenging the same does not arise. The ratio of the decision in the case of Micromax Informatics Ltd. [2016 (3) TMI 431 - DELHI HIGH COURT], Physical Research Laboratory [2016 (6) TMI 1179 - CESTAT, MUMBAI] are applicable in the present case, where it was held that Under Section 27 of the Act, as it now stands, it is not open to an authority to refuse to consider the application for refund only because no appeal has been filed against the assessment order, if there is one. Appeal allowed - decided in favor of appellant.
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