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Nitin Enterprises Versus CCE, Jammu & Kashmir

Validity of the amending Notification 19/08-CE dt.27.3.08 and Notification 34/08-CE dt.10.6.08 - Refund claim - whether the appellant would be eligible for full refund of duty paid through PLA in the manner specified in this notification or whether this benefit of notification is restricted to the duty payable on the value addition at the rate specified in the exemption notification or duty paid form PLA in the manner specified in this notification, whichever is lower - Held that:- High Court vi .....

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ejecting 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 them as premature. - impugned order is set aside and the matter is remanded back to the Commissio .....

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Rep., Advocate For the Respondent : Shri M. S. Negi, AR ORDER Per: Rakesh Kumar The appellant are manufacturer of caulking compound & liquid sealants, rust disintegrator, PVC solvent, gasket plastic, rapid drain, etc. chargeable to duty under chapters 27,32,34 & 35 of Central Excise Tariff Act, 1985. Since their unit is located in the area specified under Notification No.56/02-CE dated 14.11.02, they are availing of this exemption. The period of dispute in this case is from January, 2013 .....

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ticles) 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 PL .....

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ed in this notification, whichever is lower. The appellant in this case had availed the benefit of notification in excess of cap prescribed by amending notification No.19/08-CE dt.27.3.08 and 34/08-CE dt.10.6.08. The duty demand of ₹ 33,47,741/- was made on this basis. 2. The first point of dispute is as to whether the appellant would be eligible for full refund of duty paid through PLA in the manner specified in this notification or whether this benefit of notification is restricted to th .....

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h PLA are also exempted in this notification. According to the appellant, they had not taken self-credit of education cess and S&H cess paid 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 (26 .....

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23.12.2010 . 5. Heard both sides. 6. Both sides agree that with regard to the refund of education cess and secondary and higher secondary cess while the appellant s submission has been recorded by the Commissioner (Appeals) in para 4 of the order that they had not taken self-credit of education cess and S&H cess, and therefore the question of its recovery does not arise, the Commissioner (Appeals) has not given any finding on this point. He has simply rejected the appeal as premature based .....

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