TMI Blog2019 (4) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals) in paragraphs 4.2 to 4.5 of the impugned order. In effect, the SCN has not found fault with the filing of refund claim but has only proposed rejection of the claim predominantly on the ground that even if the goods impugned ie., inputs and capital goods have not been physically removed out of the factory, the work “removal” in Rule 3 (5) of CCR cannot be given a meaning merely “restricted to the physical removal of the goods”. The SCN made a proposition that the appellant has discharged their duty liability by way of reversal of credit and they are very much in order and as such there cannot be any refund claim. The adjudicating authority also has closely followed the contours of the SCN. The matter requires to be addressed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods arises only when the goods physically removed from the factory but the goods continue to remain within the factory and there was no physical removal of the goods from the factory premises. Mere transfer of ownership is not the criteria for discharging central excise duty liability on the goods and no excise duty is required in the absence of physical removal. Pursuant to the refund claim for ₹ 1,66,94,585/-, a SCN dated 16.11.2010 was issued to the appellants proposing rejection of the claim interalia, on the following grounds. i) As per the provisions of Rule 3(5) of Cenvat Credit Rules, 2004, when inputs or capital goods, on which Cenvat credit has been taken, are removed from the factory, the manufacturer is required to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and not admissible. Hence, this appeal. 2. Today when the matter came up for hearing, on behalf of the appellants, Ld. Advocate Shri Prakash Shah made oral and written submissions, which are broadly summarized as under:- i) Ld. Commissioner (Appeals) committed serious error of law in making out a new case for the Revenue, which was neither setup in the SCN or adjudication order, that the claim for refund is premature and ill-advised and that the Asst. Commissioner sat in judgment over the direction of the Commissioner of Central Excise. ii) Admittedly, the department accepted the order of the Asst. Commissioner as no proceedings are taken to review the said order. iii) It is settled law that no new case can be made out by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim on a ground totally different from the grounds mentioned in the SCN. In any event, the claim of the appellant was not premature and was admissible. x) The question of unjust enrichment does not arise in the facts of the present case in view of admitted fact that the appellant did not recover the said amount from GVR and GVR did not take the credit of the said amount. xi) Ld. Advocate also draws our attention to the ratio of the following case laws:- a) Dalmia Cements (Bharat) Ltd. Vs. CCE 2008 (224) ELT 484(Tri.-Chen.) b) L.G. Balakrishnan * Bros. Ltd. Vs. CCE. Trichy 2016 (340) ELT 780 (Tri.-Chen.) c) CCE ST, Raipur Vs. Bhilai Steel Plant 2018 (12) GSTL 28 (Chattisgarh) d) Reckitt Colman of India Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im but has only proposed rejection of the claim predominantly on the ground that even if the goods impugned ie., inputs and capital goods have not been physically removed out of the factory, the work removal in Rule 3 (5) of CCR cannot be given a meaning merely restricted to the physical removal of the goods . Only on this premise, has the SCN made a proposition that the appellant has discharged their duty liability by way of reversal of credit and they are very much in order and as such there cannot be any refund claim. The adjudicating authority also has closely followed the contours of the SCN. It is not the case that department was aggrieved with the issue of SCN on these lines or for that matter, the decision of the original authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority vide his order dated 29.07.2011 had rejected the refund based on the grounds made out in the SCN. 5.5 In these circumstances, we are of the opinion that the matter requires to be addressed once again by the original authority. The original authority shall take into account the ratio of the case laws relied upon by the Ld. Advocate in particular that of the Hon ble Apex Court in J.K. Spinning and Weaving Mills Ltd. and Another Vs. UOI 1987 (32) ELT 234 (SC) that the judgment of the jurisdictional High court of Madras in the case of Dalmia Cements (Bharat) Ltd. (supra) and TVS Srichakra Ltd. Vs. CGST, Madurai 2018 (15) GSTL 182 (Mad.) and decision of Cestat Chennai in L.G. Balakrishnan Bros. Ltd. (supra). The adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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