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2020 (1) TMI 1095 - AT - Central ExciseService of SCN - Refund of CENVAT credit - area based exemption - benefit of N/N. 56/2002-CE dated 14.11.2002 - refund claim was rejected by the authorities below on the ground that the appellant has deposited the amount under dispute voluntarily in a bonafide manner - HELD THAT:- The appellant has intimated that they have availed credit of ₹ 36,57,968/- during the period from 16.6.1997 to 03.9.1997 on seven bills of entries for inputs imported on payment of CVD duty. It is also admitted position that the amount ₹ 18,28,984/- has been paid by the appellant under protest on various dates. It is a fact on record that that equal amount has been deducted from the refund claim sanctioned to the appellant. It is also admitted position that no show cause notice has been issued to the appellant for appropriation of the said amount paid by the appellant. On going through the facts of the case, it is admitted position that the credit was availed by the appellant during the period from 16.6.1997 to 03.9.1997 and through letter dated 25.2.2005 (which is almost after passing of more than seven and half years), the appellant was asked to reverse the Cenvat credit availed during the period 16.6.1997 to 03.09.1997. Reversal was made initially by the appellant under protest through a letter. Remaining amount has been adjusted from the refund claim but no proof has been produced by the Revenue that the adjustment of amount in refund claim has been communicated to the appellant. Extended period of limitation - HELD THAT:- As no SCN has been issued to the appellant within five years from the date of availing of credit i.e. five years after 3.9.1997, the amount of cenvat credit availed wrongly cannot be recovered from the appellant. Therefore, at this stage, if it is directed to the Revenue to issue show cause notice and time consumed in litigation between 25.2.2005 (when it was found that the appellant has taken credit wrongly) till date if the time is excluded also, no purpose will be serve if a show cause notice is issued to the appellant for appropriation of the amount of Cenvat credit as on date as the letter dated 25.2.2005 issued by the department to the appellant clearly shows that the credit has been availed by the appellant wrongly - In that circumstance, the extended period of limitation is not invokable. Admittedly, no SCN has been issued to the appellant and the amount was paid by the appellant under protest. The refund claim cannot be rejected on the ground that the appellant has vacated the issuance of the SCN. In that circumstance, the amount recovered from the appellant is required to be refunded to them - appeal allowed - decided in favor of appellant.
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