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2017 (6) TMI 425 - CESTAT BANGALORE

2017 (6) TMI 425 - CESTAT BANGALORE - TMI - Refund of CENVAT credit - credit availed on the basis of duty paying documents - denial of refund on the ground that the same is not within the stipulated period as prescribed in Section 11B of the CEA, 1944 - But while passing the impugned order, the refund claim has been denied on the ground which has not been taken in the show-cause notice and the same is not sustainable in law - scope of SCN - Held that: - as per the Rule 3(4) read with Rule 9(1)(a .....

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e same as per Section 11B of the CEA. - Appeal allowed - decided in favor of appellant. - E/2619/2010-SM - Final Order No. 20841 / 2017 - Dated:- 7-6-2017 - Shri S. S. Garg, Judicial Member Mr. Harish Bindhu Madhavan, Advocate For the Appellant Shri K. T. Pakshirajan, AR For the Respondent ORDER Per S. S. Garg The present appeal is directed against the impugned order dated 31.5.2010 passed by the Commissioner (A) whereby the Commissioner (A) has rejected the appeal of the appellant. 2. Brief .....

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also confirmed that M/s. JSW Steel Ltd. had availed the CENVAT credit based on the duplicate copy of the invoice issued by the M/s. Alstom. Further, they invoice on M/s. JSW Steel Ltd. for the said goods vide Invoice No.267 to 269 dt.31.8.2007 involving duty amount of ₹ 21,32,283/-. Meanwhile at the time of audit, it was insisted upon the appellant to pay the duty on goods not received in their manufacturing premises. On insistence by audit, the appellant paid/reversed the CENAT credit vid .....

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9.4.2009 rejected the refund claim of ₹ 22,53,330/- on the grounds that, the M/s. JSW Steel Ltd. has availed the credit on receipt of the goods from M/s. Alstom. Appellant has raised three invoices cited supra on 31.8.2007 without receiving or despatching the goods to M/s. JSW Steel Ltd. Further, they have availed the credit on 1.9.2007, therefore, it is not the case that assessee has initially availed the credit and paid the duty erroneously, instead they have first paid the duty and then .....

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claim under Section 11B of Central Excise Act, 1944. Aggrieved by the Order-in-Original, the appellant filed the appeal before the Commissioner (A) on the ground that their claim is under Section 11B of the Central Excise Act and the Original authority has rejected the claim on the ground not stated in the show-cause notice. The commissioner (A) after considering the submission of the appellant rejected the appeal, hence the present appeal. 3. Heard both the parties and perused the records. 4. L .....

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ect the refund claim for any other reasons, whatsoever. He further submitted that refund claim was filed within the period as provided in Section 11B. He also submitted that appellant paid the duty at the insistence of the departmental audit team on 14.1.2008 vide TR6 challan and they have filed the refund claim on 28.11.2008 which clearly shows that the refund claim is filed within the due date of one year from the date of payment as prescribed in Explanation to Section 11B. He also submitted t .....

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eported in 2008 (224) ELT 333 (Tri.- Bang.); ETA Technology Ltd. vs. CCE: 2007 (212) ELT 371; PSL Holdings Ltd. vs. CCE: 2003 (156) ELT 602 and Gokaldas Images Pvt. Ltd. vs. CCE: 2008 (227) ELT 448 wherein it has been held that if credit is reversed erroneously on the insistence of audit, then the assessee can claim refund of the same. He further submitted that payments of duty and availing of credit initially is not at all the question of dispute, rather the payment of duty second time was at t .....

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rise. 5. On the other hand, the learned AR defended the impugned order. 6. After considering the submission of both the parties and perusal of the material on record, I find that as per the show-cause notice, the refund claim is sought to be denied on the ground that the same is not within the stipulated period as prescribed in Section 11B of the Central Excise Act, 1944. But while passing the impugned order, the refund claim has been denied on the ground which has not been taken in the show-cau .....

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