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M/s NSP Electornics Ltd. Versus The Commissioner of Central Excise, Bangalore

2015 (9) TMI 262 - CESTAT BANGALORE

Denial of refund claim - Duty paid along with interest at the instance of Audit team - No proceedings initiated for duty demand - whether the refund made by the appellants is barred by limitation or not - Held that:- Appellants debited the Cenvat credit on the instructions of the audit team. The audit has no jurisdiction to adjudicate the disputed issue. Once the debit is made at the instructions of the audit team, the Revenue is under a legal obligation to initiate proceedings for confirmation .....

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sessee. - E/441/2009-SM - Final Order No. 21716 / 2015 - Dated:- 3-8-2015 - Hon'ble Smt. Archana Wadhwa, Judicial Member,J. For the Appellant : Mr. B. N. Gururaj, Adv. For the Respondent : Mr. Pakshirajan, A.R. ORDER Appellant is engaged in the manufacture of Printed Circuit Board falling under Chapter heading 8534.00 of the Central Excise Tariff Act, 1985. They were availing benefit of Cenvat credit of service tax paid on GTA service utilized for outward transportation of excisable goods fr .....

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them by the Revenue for adjudication on the said disputed issue and the debit entry was never appropriated towards any payment of duty confirmed against them. The appellant subsequently claimed refund of the said debited amount vide their application dated 17.6.2008. The same stands denied by the lower authorities on the grounds that the refund claim has been made after a period of one year from the date of the debit. Hence, the present appeal. 3. After hearing both sides, I find that the facts .....

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zed for outward transportation of the goods from the factory gate to the customers premises are cenvatable. As such, it is to be only seen as to whether the refund would be barred by limitation or not. 4. It is well settled law that the officials working under the Central Excise Act cannot travel beyond the act and are bound by the provisions of the Central Excise Act. However, the real legal issue required to be considered in the present case is as to whether the provisions of Section 11B of th .....

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t apply. 5. It is undisputed that the appellants debited the Cenvat credit on the instructions of the audit team. The audit has no jurisdiction to adjudicate the disputed issue. Once the debit is made at the instructions of the audit team, the Revenue is under a legal obligation to initiate proceedings for confirmation of the amount in question, by deciding on the disputed legal issue. No such proceedings, by way of show-cause notice stands initiated against the appellants and the deposit so mad .....

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he decision. By taking note of the Board s Circular No. 290/6/97-CX dated 20.1.1997, the Tribunal observed as under : 5. I have considered the submissions made by both sides and perused the records. The issue to be decided in this case is whether the amount paid by the appellants on the direction of the audit team is to be considered as an amount of duty payable or an amount paid by them to the Revenue for which they have filed a refund claim. 6. On the factual matrix, I find that there is no di .....

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