TMI Blog2018 (11) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment order - It was clarified in the case of Aman Medical products ltd. that the decision of the Apex Court in the case of Priya Blue Industries is applicable in a situation where there was a lis (contest) between the Department and the assessee at the time of assessment whereas in the instant case the amount was paid without contest. Therefore, the ratio of the decision in the Priya Blue Industries is not applicable in the present case. There is no assessment order passed in the present case. Therefore, the question of challenging the same does not arise. The ratio of the decision in the case of Micromax Informatics Ltd. [2016 (3) TMI 431 - DELHI HIGH COURT], Physical Research Laboratory [2016 (6) TMI 1179 - CESTAT, MUMBAI] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Five Thousand One Hundred and Forty Two only) and penalty of ₹ 87,802/- (Rupees Eighty Seven Thousand Eight Hundred and Two only) vide challan No. 97 dated 19.09.2016 against the Audit Para No. 3 towards irregular availment of input service credit on Rent for the period from 07/2014 to 06/2016 for the Rent charges paid for appellants another Unit-2 which is a different unit. Audit Report No. 273/Circle-II/2016-17 dated 04.11.2016 has been issued after discussing the same in the MCM. 1.3. During the course of Audit on the records M/s. Aerosol Filters Private Limited the period from 07/2014 to 06/2016, it was observed that the appellant has availed input service credit on service tax paid towards rent of the premises of Unit-2 which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to reject the refund claim amounting to ₹ 8,28,292/- (Rupees Eight Lakhs Twenty Eight Thousand Two Hundred and Ninety Two only) filed under the provisions of Section 11B of the Central Excise Act, 1944. After due process, the adjudicating authority rejected the refund claim on the ground that the assessee has consented to the said assessment and paid the said amount along with interest and penalty. As the assessment has not been challenged by the assessee therefore the assessee is not entitled to the refund. Aggrieved by the said order, appellant filed appeal before the Commissioner who also rejected the appeal. Hence the present appeal. 2. Heard both the parties and perused the records. 3. Learned consultant for the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out order of assessment having been modified in appeal and that the officer considering refund cannot sit in appeal over an assessment made by the competent officer. Learned consultant further submitted that the ratio of the decisions rendered in the case of M/s. Flock (India) Pvt. Ltd. is not applicable to the instant case as in that case an appelable order was passed by the Assistant Commissioner of Central Excise classifying a product under a broad tariff but the assessee has not challenged the said order and instead choose to file a refund claim. Similarly in the case of Priya Blue Industries, the assessee contested the assessment made by the Department and paid the duty under protest. After the assessment of the bills of entry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. On the other hand the learned AR defended the impugned order and submitted that once the appellant has accepted the audit objections and paid the duty along with interest and penalty and requesting the audit authority not to issue the show-cause notice thereafter filing a refund by the appellant is not maintainable in law. He further submitted that in such a situation no show-cause notice is required. He also defended the impugned order by submitting that the impugned order has relied upon the decisions of the Apex Court in the case of Priya Blue and Flock India Pvt. Ltd. 5. After considering the submissions of both the parties and perusal of the material on record, I find that the appellant who is a SSI Unit engaged in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund claim. This ground which is taken by the Department was on the basis of Priya Blue Industries case and Flock India Pvt. Ltd. case cited supra whereas these two cases are not applicable in the facts of the present case because there was no assessment order passed by the audit party which is an appealable order. Further the appellant has paid the service tax, interest and penalty on a bona fide mistake on the direction of the audit team and therefore he has filed the refund claim within time claiming refund of the cenvat credit of service tax paid on the rent for Unit-2. Further the decision in the case of Aman Medical Products Ltd. cited supra, the Delhi High Court has distinguished the Priya Blue and Flock India c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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