TMI Blog2016 (4) TMI 769X X X X Extracts X X X X X X X X Extracts X X X X ..... first round of litigation. The observations made by the First Appellate Authority that appellant did not admit duty liability is thus not correct and is required to be set aside. - Decided in favour of revenue - Appeal No.EA-233/11 - Order No.FO/A/75241/2016 - Dated:- 4-4-2016 - SHRI H.K.THAKUR, MEMBER(TECHNICAL) For the Petitioner : Shri K.Chowdhury, Supdt.(AR) For the Respondent : Shri Saurabh Bagaria Shri Partha Banerjee, Advocates ORDER PER SHRI H.K.THAKUR. This Appeal has been filed by the Revenue against Order-in-Appeal No.08/KOL-IV/2011 dated 21.01.2011 passed by Commissioner(Appeals), Kolkata-V under which Order-in-Original dated 02.07.2007 passed by the Adjudicating Authority has been set aside. Und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund claim of ₹ 8.63,245/- which was rejected under Order-in-Original dated 02.07.2007 and Ld.Commissioner(Appeals) under Order-in-Appeal dated 21.01.2011 allowed the appeal as per para-6 holding that Appellant at no stage has accepted its liability and inadmissibility of MODVAT Credit. The ld.AR made the Bench go through the letter dated 07.05.1997 written by the Respondent to DGCEI and emphasized that amount was paid voluntarily by the Respondent with respect to inadmissible MODVAT Credit. He also made the Bench go through para 5 of Order dated 05.01.2006 passed by this Bench in the first round of litigation where a specific observation has been made by this Bench that the Respondent paid the duty voluntarily before the issue of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uments made by the ld.Advocate of the Respondent Shri Chowdhury (AR) argued that this Bench in the case of Steel Products Ltd. vs. CCE, Kol-II relied upon Gujarat High Court s decision in the case of Parle International Ltd. v. UOI [2001 (127) ELT 329(Guj.)], which has been set aside by Honble Supreme Court as per citation Commissioner v. Parle International Ltd. [2005 (188) ELT A-81(SC)]. 5. Heard both sides and perused the case records. 6. The issue involved in the present proceedings is whether Respondent can seek refund of MODVAT Credit once taken and paid back as a result of initiation of investigation by DGCEI. In the present proceedings a case was initiated against the Respondent on 02.04.1997 on the grounds that credit taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the view that MODVAT Credit and resultant refund is admissible then they should have filed an Appeal on this aspect before the First Appellate Authority and this Bench in the first round of litigation. In the absence of any such Appeal Respondent cannot file another refund claim on 27.11.2006 without contesting the merits of the case in the first round of litigation. The amount paid back has to be considered as payment of the improperly taken credit and not a deposit which was not further contested by the Respondent. 7. The ld.AR has relied upon the case law of Apex Court in the case of Tractors and Farm Equipment Ltd. v. CC, Madras (supra), where the Appellant M/s.Tractors and Farm Equipments Ltd. claimed the imported internal Combusti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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