TMI Blog2017 (11) TMI 1097X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. M.V. Ravindran, Member (Judicial) Shri U. Sengraj, D.R. - for the appellant Shri Prakash Shah, Advocate - for the respondent ORDER Per: M.V. Ravindran This appeal is filed by Revenue against the Order-in-Appeal No.104/2011 dated 26.4.2011. 2 Heard both sides and perused the record. 3. Heard in detail the submissions of DR and ld. Counsel for the respondent, he files a short submission which is taken on record. 4. After hearing both the sides and on perusal of records, it transpires that the issue is regarding the refund of the amount lying unutilized in the Cenvat credit account of the respondent. It is the claim of the respondent in the refund claim filed that the preventive officers during th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rought on record that the appellant was prevented from taking utilizing Cenvat credit lying in their account and (iii) Commissioner (Appeals) has relied upon the decision of Gauri Plasticulture (P) Ltd. 2006 (202) ELT 19 (Tri.-LB) which is incorrect. 7. The ld. Counsel submits that the first appellate authority was correct in coming to the conclusion. His submissions are that they had filed a letter on 24 th June 2008 which is not disputed which clearly indicated that they had been forced to pay the duty through PLA or in cash; that the top which was procured on payment of duty was used for manufacturing of tops which was dutiable and not covered under Notification No.30/2004 till 7 th July 2009 and the entire credit which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eligible for benefit of exemption provided under Notification 30/2004. The appellants were in agreement with this, however, in order to continue benefit of said notification, they have paid an amount of ₹ 16,81,977/- to the extent of Cenvat credit utilised towards payment of duty on the polyester top manufactured and cleared by them, vide TR 6 challan No. CE/03/08-09 dated 23.6.2008 Under Protest , with right to claim refund of the amount so paid. The Appellants have submitted that in the writ petition No.2931/2008 filed by the Appellants, the Hon ble Bombay High Court, by its judgment dated 16.6.2009 was pleased to hold that the appellants are entitled to the benefit of exemption under S. No.10 of Notification No.30/2004 dated 9.7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admissible amount utilised to the extent of ₹ 16,81,977/- was paid by them cash and subsequent clearances were effect on payment of duty in cash only. Thus they were prevented from utilisation of from accumulated credit also. Since, the appellant were infact eligible for availment of Cenvat credit and utilisation of the same towards payment of duty on the final product i.e. polyester top, they were not required to pay duty in cash to the extent of credit admissible and which was lying unutilised. However, since the goods were subsequently exempted from payment of duty, the appellants are not in a position to utilise such accumulated credit. In the circumstance, in view of Tribunal s decision (supra), the appellants are eligible for r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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