TMI Blog2020 (1) TMI 1095X X X X Extracts X X X X X X X X Extracts X X X X ..... t on various dates. It is a fact on record that that equal amount has been deducted from the refund claim sanctioned to the appellant. It is also admitted position that no show cause notice has been issued to the appellant for appropriation of the said amount paid by the appellant. On going through the facts of the case, it is admitted position that the credit was availed by the appellant during the period from 16.6.1997 to 03.9.1997 and through letter dated 25.2.2005 (which is almost after passing of more than seven and half years), the appellant was asked to reverse the Cenvat credit availed during the period 16.6.1997 to 03.09.1997. Reversal was made initially by the appellant under protest through a letter. Remaining amount has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AL) Shri D.H.Nadkarni, Advocate for the Appellant Shri Vijay Gupta, Authorised Representative for the Respondent ORDER The appellant is in appeal against the impugned order wherein the refund claim has been rejected by the authorities below. 2. The facts of the case are that the appellant was engaged in manufacture of Camphor and Disproportioned Resin, Rosins/Rosin derivatives and Turpentine/Turpentine derivatives. The appellant was availing area based exemption in terms of Notification No.56/2002-CE dated 14.11.2002 as the appellant is located in the State of Jammu Kashmir. During the period from 16.6.1997 to 03.9.1997, the appellant had availed cenvat credit of CVD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he letter dated 10.8.2007 wherein it has been stated that the amount deposited voluntarily and in a bonafide manner, this results into vacation of payment made under protest and issuance of show cause notice is not required. It is his submission that the content of the letter required to be read in its entirety and not by pick and choose method. Further, neither show cause notice nor any order issued to them therefore the amounts paid is deposit only. Moreover, the words we have deposited the above amount voluntarily and in a bonafide manner , shows that what was deposited is an amount and not tax. Till today, whatever amounts are deposited in the absence of show cause notice are deposits only and it has not taken the colour of duty. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in a bonafide manner before issuance of show cause notice. They also claimed in view of the judgement of this Tribunal in the case of Triveni Engineering Industries Ltd. vs. CCE, Mysore and in the case of Machino Montel vs. CCE, Bangalore, no interest is payable by them which shows that the amount paid by the appellant was not under protest and protest has been vacated. 8. He further submits that it is admitted position that the appellant has accepted and had not filed any appeal against the refund orders vide which ₹ 18,28,984/- has been claimed to be deducted by the department. The refund cannot be claimed now and the orders which have been attained finality cannot be revived at this stage after 14 years. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. On going through the content of the letter dated 10.8.2007, I find that the said letter has been written by the appellant in reply to the letter dated 12.6.2007 wherein the interest has been demanded from the appellant for an amount of ₹ 36,57,968/- either reversed by the appellant or the same has been adjusted from the refund claims. In reply to the said letter, it has been replied by the appellant that the amount has already reversed by them and no show cause notice has been issued to them after five years, the demand of interest has been raised not through show cause notice but through a letter, therefore, they are not liable to pay interest. In this context, they wrote that they have deposited the amount volunta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue a show cause notice to the appellant, if they so desire. For the purpose of limitation, the period from 29.07.2016 to till date of issue of this order shall stand excluded for the purpose of calculation of limitation. Such show cause notice should be issued within 3 months from the date of issue of this order. Pursuant to issuance of the show cause notice, the appellant shall be at liberty to either contest or settle in accordance with law. 16. As no show cause notice has been issued to the appellant within five years from the date of availing of credit i.e. five years after 3.9.1997, the amount of cenvat credit availed wrongly cannot be recovered from the appellant. Therefore, at this stage, if it is directed to the Reven ..... X X X X Extracts X X X X X X X X Extracts X X X X
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