TMI Blog2015 (4) TMI 850X X X X Extracts X X X X X X X X Extracts X X X X ..... A as is pending judgement dated 23.12.2010 . In our view pending decision of LPA, the department cannot implement amending Notification 19/08-CE dt.27.3.08 and Notification 34/08-CE dt.10.6.08 which have been challenged by the appellant before the High Court. Therefore, appeal filed by the appellant against the Assistant Commissioner s order rejecting the refund claim, cannot be said to be premature. The Commissioner (Appeals) should have disposed of the appeals after decision of the LPA filed by the department against the High Court s judgement in the case of Reckitt Bencksier (India) Ltd. (2010 (12) TMI 237 - JAMMU AND KASHMIR HIGH COURT), and he should have kept the appeals pending till the decision of the LPA and he could not dismiss t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise (Goods of Special Importance) Act, 1957 [AED(GSI)] and Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 [AED (T TA)] to the extent of these duties are paid through PLA after payment of duty in respect of the goods cleared during the month to the extent possible through cenvat credit available at the end of the month. Thus, under this exemption notification, the manufacturer was required to first pay the duty in respect of the goods cleared during month through cenvat credit available at the end of month to the extent possible and pay the duty, if any still payable, through PLA and it is this, duty paid through PLA which is refundable. The refund was available as self-credit which was to be approved by the Assist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid through PLA while according to the department, they have taken credit to the extent of ₹ 2,63,949/-. 4. The Commissioner (Appeals) by the impugned order has dismissed the appeal as premature on the ground that while Single Bench of Jammu Kashmir High Court vide judgement dated 23.12.2010 in the case of Reckitt Bencksier (India) Ltd. 2011 (263) ELT 194 (J K) has quashed the amending notification 19/08-CE dt.27.3.08 and Notification 34/08-CE dt.10.6.08, the department has filed LPA against that judgement and in respect of writ petition filed by the appellant before Hon ble High Court challenging validity of the amending Notification 19/08-CE dt.27.3.08 and Notification 34/08-CE dt.10.6.08, High Court has ordered that implement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal filed by the appellant against the Assistant Commissioner s order rejecting the refund claim, cannot be said to be premature. The Commissioner (Appeals) should have disposed of the appeals after decision of the LPA filed by the department against the High Court s judgement in the case of Reckitt Bencksier (India) Ltd. (supra), and he should have kept the appeals pending till the decision of the LPA and he could not dismiss them as premature. 8. In view of above discussion the impugned order is set aside and the matter is remanded back to the Commissioner (Appeals) to decide the disputed refund claim of education cess and S H cess in respect of the appellant s plea that they have not taken self-credit of education cess and S H ces ..... X X X X Extracts X X X X X X X X Extracts X X X X
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