TMI Blog2018 (4) TMI 1155X X X X Extracts X X X X X X X X Extracts X X X X ..... hority. Refund claim - closure of factory - CENVAT credit - Held that: - at no stage, it has been questioned to the appellant that for denial of Cenvat credit which are not entitled to them. Moreover, the Revenue collected the duty from the appellant. Although the Revenue was of the view that activity undertaken by the appellant does not amount to manufacture. At the stage of filing of refund claim, Revenue cannot correct their wrong doings. The issue of non-entitlement of Cenvat credit cannot be raised at the stage of entertaining refund claim without challenging the availment of Cenvat credit. Commissioner (Appeals) was not required to consider the appeal filed by the Revenue but chose to send the matter back to the adjudicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peals) Rules, 2001, therefore, matter is to be reconsidered by the adjudicating authority. Against the said order, the appellant is in appeal on the ground that the Id. Commissioner (Appeals) has not considered the merits of the case and sent the matter back to the adjudicating authority for consideration of additional evidence therefore the appellant is in appeal before us. 3. Ld. AR raised the objection to entertain the appeal by the Tribunal, on the ground that the Id. Commissioner (Appeals) has rightly remanded the matter back to the adjudicating authority and in terms of Section 35A (3) of Central Excise Act, 1944. Therefore, he submits that the appeal is to be dismissed. He relied on the following case laws:- (a) Hawkins Cookers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal. - This is also not a case and the appellant were never prevented by the adjudicating authority. (d) Where the adjudicating authority has made the order appealed against without giving sufficient opportunity to the appellant to adduce evidence relevant to any ground of appeal. - This is also not the case of the Revenue. Therefore, in terms of Rule 5 of Central Excise (Appeals) Rules, 2001, the additional evidences placed before the Id. Commissioner (Appeals) are not admissible and the same cannot be the ground for remand the matter back to the adjudicating authority. Therefore, the objections raised by the Id. AR are turned down. 6. Ld. Counsel for the appellant submits that their case is squarely covered by the decision of Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f this Tribunal is based on the decision in Steel Strips (supra) and this Tribunal has distinguished the decision of Slovak India Trading Company Pvt. Limited (supra) on the premise that the order of the Hon'ble Apex Court is a consented and therefore, the same is not a binding precedent. He also relied upon the decision in We/cure Drugs and Pharmaceuticals Limited vs. CCE, Jaipur- 2018-T/OL-380-HC-RAJ-CX to say that the Tribunal in the said case has relied on the decision of Steel Strips (supra) and denied the refund to the assessee but the Hon'ble High Court considered the decision of the Hon'ble Apex Court in the case of Slovak India Trading Company Pvt. Limited (supra) allowed the refund claim after considering the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue collected the duty from the appellant. Although the Revenue was of the view that activity undertaken by the appellant does not amount to manufacture. At the stage of filing of refund claim, Revenue cannot correct their wrong doings. Therefore, the issue of non-entitlement of Cenvat credit cannot be raised at the stage of entertaining refund claim without challenging the availment of Cenvat credit. In that circumstance, the decision in the case of Pitamber Coated Paper Limited (supra) is not applicable to the facts of this case, as in this case, at any stage, nowhere the availment of Cenvat credit was questioned rather the Revenue collected duty from the appellant on their final products. 9. The Revenue is heavily relying on the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istration certificate, assessee is entitled to claim refund of Cenvat credit lying unutilised in their Cenvat account. Therefore, on merits, we hold that appellant is entitled to claim refund which has already been granted to the appellant by adjudicating authority. We also take note of the fact that in the case of Rama Industries Limited (supra), the jurisdictional High Court has entertained the issue on merits and hold that appellant is entitled to claim of refund of Cenvat credit lying unutilised in their Cenvat account on closure of factory and on surrender of registration. 10. We have examined the impugned order placed before us. The adjudicating authority, relying on the decision of Slovak India Trading Company Pvt. Limited (supra) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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