TMI Blog2017 (10) TMI 500X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 31.10.2008 passed by the Commissioner (A) and has held that the mining activity amounts to manufacture and is liable for payment of excise duty since the iron ore is an excisable goods within the meaning of Section 2(d) of the Central Excise Act, 1944. Also, the department has sought to recover the refund which has already been sanctioned without challenging the order sanctioning the refund, which is not permissible in law. Appeal allowed - decided in favor of appellant. - E/20834-20840/2014-SM - Final Order No. 22400 - 22406 / 2017 - Dated:- 9-10-2017 - Shri S. S. Garg, Judicial Member Mr. N. Anand, Advocate For the Appellant Mr. Naveen Kushalappa, AR For the Respondent ORDER Per : S. S. Garg The appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bullenahalli, Sondenahalli and Bedara Bommanahalli in Tumkur and Chitradurga Districts. They are engaged in the extraction of Iron ore from the mines and are exporting the same. During the course of business, the appellants had filed refund claims for refund of service tax paid on input services under Notification No.5/2006-CE (NT) dated 14.3.2006 for different periods and the same were sanctioned. As it appeared that the activity carried out by the appellants did not amount to manufacture, thereby taking input credit of service tax paid as incorrect, the appellants were issued with seven show-cause notices proposing to recover the refund erroneously sanctioned. The original authority after following the due process of law demanded the ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in mining, processing and export of iron ore. Learned counsel further submitted that the Order-in-Appeal No.138/2008 was challenged before this Tribunal in a bunch matter consisting of 12 appeals and this Tribunal vide Final Order No.20489-20500/2017 dated 20.4.2017 has held that the activity of mining is construed in law to be an activity of manufacture or production and is liable for payment of excise duty, since the iron ore is an excisable goods within the meaning of Section 2(d) of the Central Excise Act, 1944 read with Chapter Heading 2601 of the First Schedule to CETA, 1984. He further submitted that this Tribunal in the said order has allowed all the appeals of the assessee by setting aside the impugned order thereby holding that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ron ore is an excisable goods within the meaning of Section 2(d) of the Central Excise Act, 1944. I also find that the department has sought to recover the refund which has already been sanctioned without challenging the order sanctioning the refund, which is not permissible in law. Further, I find that in the case of Eveready Industries Ltd. cited supra, the Hon ble High Court of Madras has held that the refund order passed under Section 11B of the Central Excise Act, 1944 is an order and if the refund has been granted it must be presumed that the procedure under Section 11B of the Central Excise Act, 1944 was followed and the adjudication order has been rightly passed and if no appeal has been filed against the order under Section 11B, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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