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2018 (11) TMI 612 - AT - Central ExciseQuantum of exemption under N/N. 56/2002-CE - CENVAT Credit availed while availing area based exemption under said notification - Department has alleged that the appellant by showing inflated production have received higher quantum of exemption in form of refund - Applicability of Section 11A of the Central Excise Act, 1944 - assessment of refund claim not challenged - validity of issuance of SCN u/s 11AC - Held that:- The self credit of refund taken by the appellant have been sanctioned by the authorities below, therefore, without challenging the same, the show cause notice cannot be issued to the appellant under Section 11AC of the Act in terms of the decision of the Hon’ble High Court of Gauhati in the case of Jellapore Tea Estate [2011 (3) TMI 11 - GAUHATI HIGH COURT] - SCN not valid. Self credit taken where no duty is payable - Held that:- The said issue has been settled by this Tribunal in the case of Jindal drugs Ltd. [2018 (5) TMI 379 - CESTAT CHANDIGARH (LB)] wherein it has been held that whether the appellant was not liable to pay duty, therefore, the provisions of Section 11-A of the Central Excise Act are not applicable as it is not a case of short payment of duty, non-payment of duty or erroneously refund of duty - SCN issued u/s 11A not sustainable. Denial of CENVAT Credit on the basis of the test report of inputs - Held that:- It is admitted by the Revenue that the appellant has received the inputs and in terms of Rule 3 of the Cenvat Credit Rules, 2004, the asseesse is entitled to take cenvat credit of duty paid on inputs. It is in material whether the inputs are as per test report or not - Credit allowed. Appeal allowed - decided in favor of appellant.
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