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2017 (4) TMI 985 - CESTAT NEW DELHI

2017 (4) TMI 985 - CESTAT NEW DELHI - TMI - Refund claim - amount paid under protest - The reason for rejection of such refund in the impugned order is that the appellant would not be eligible for taking the credit on inputs; once, it has been held that the final products are not liable to payment of Excise duty - Held that: - It is settled law that there is no prohibition under CEA, 1944 or the rules made there-under for cash refund of duty paid by utilization of Modvat/Cenvat credit. Section 1 .....

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the Respondent Per V. Padmanabhan The present appeal is directed against the Order-in-Appeal no.162/2011 dated 28.7.2011. The appellant is a Government of Madhya Pradesh undertaking and are engaged in the production and distribution of electricity. The appellant also undertakes the work of erection of towers for drawing transmission lines. For this purpose, they carried out the activities such as cutting, drilling, punching, bending, welding, assembling and painting etc on duty paid iron and ste .....

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ng to manufacture by the Tribunal vide Final Order No.A/379/03-NB-C, dated 16.07.2003. Consequent upon the decision of the Tribunal, the appellant received a refund of ₹ 35,25,514/- in cash. The present dispute is with reference to the refund claim of ₹ 63,30,263/- paid by utilization of Cenvat credit. The refund claim for the above amount was rejected by both the authorities below for the reason that the said amount has been paid by making use of the modvat credit, which was accumul .....

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ts at the insistence of department. Hence, the credit taken is in order. Therefore, the view taken by the Commissioner (Appeals) is without basis. ii. Since, the activity undertaken by the appellant has been held to be not amounting to manufacture, the duty paid is required to be refunded. The appellant is not undertaking any activity at the moment requiring the payment of Excise duty. Consequently, no useful purpose will be served by re-crediting the refund to the modvat account. Hence, they pr .....

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funded. The dispute remains only for the amount of ₹ 63,30,263/-, which has been paid by the appellant out of the modvat credit. The reason for rejection of such refund in the impugned order is that the appellant would not be eligible for taking the credit on inputs; once, it has been held that the final products are not liable to payment of Excise duty. 6. The stand taken in the impugned order is peculiar. The appellant was made to pay duty by taking the view that the final products are l .....

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