9911796707
TMI Blog2007 (8) TMI 573X X X X Extracts X X X X X X X X Extracts X X X X ..... Ammonium Chloride (fertilizer grade). They filed several refund claims for the accumulated Cenvat credit on account of packing materials as their product, namely, fertilizers are exempt from payment of duty. Sanctioning five such claims made for the years 2003 and 2004, totalling Rs. 4,09,932/- was paid to TAC. During the year 2004, the said orders sanctioning refunds passed by the Assistant Commissioner of Central Excise, Tuticorin Division were reviewed by the Commissioner of Central Excise as per Section 35E of the Central Excise Act, 1944. Accordingly five appeals were filed with the Commissioner of Central Excise (Appeals), Tirunelveli. 2. After hearing the appellants, the Commissioner (Appeals) found that in terms of Rule 5 of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to seek support from the decision of the Tribunal in Panyam Cements & Mineral Indus. Ltd. v. CCE, Hyderabad reported in 2004 (178) E.L.T. 434 (Tri.-Bang.) and Circular No. 423/56/98-CX, dated 22-9-1998 issued by the CBEC. In the circular issued by the Board, the Board had instructed that demands should invariably be issued under Section 11A of the Act and that recourse to review under Section 31E of the Act alone was not sufficient in cases of consequential refunds following orders not accepted. In the order of the Tribunal cited by the ld. Counsel, the Tribunal had observed that to recover the amounts already paid to the appellants, the only course open to the department was to issue a show cause notice under Section 11A of the Act, for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where adjustment of the credit is not possible "or any reason", the refund cannot be denied if the same was lying unutilized in the Cenvat account and the assessee claimed refund of the same. 6. I also find that in the instant case, no show cause notice was issued to recover the refund sanctioned by the Asst. Commissioner. In the Panyam Cements & Mineral Indus. Ltd. v. CCE, Hyderabad case (supra), the Bangalore Bench of this Tribunal had observed as follows: "To recover the amount already paid to the appellant, only course open to the Department was to issue a show cause notice under Section 11A of the Central Excise Act for recovery of the amount erroneously refunded to the appellant and simultaneously filing the appeal before the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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