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M/s. Weir Minerals (India) Pvt. Ltd. Versus Commissioner of Central Excise, Mangalore

2017 (6) TMI 425 - CESTAT BANGALORE

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)(i) of the CENVAT Credit Rules, CENVAT cred .....

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Appeal allowed - decided in favor of appellant. - E/2619/2010-SM - 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. Briefly the facts of the present case are that appellants received .....

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T 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 vide TR6 challan No.07-08/08 dated 14.2.2008 along with interest .....

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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 availed the credit on the invoices consigned to their custom .....

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d 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. Learned counsel for the appellant submitted that the impugned .....

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rther 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 that as per Rule 3(4) read with Rule 9(1)(a)(i) of CENVAT Cred .....

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td. 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 the insistence of the audit and it was that the goods were wro .....

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