TMI Blog2021 (6) TMI 510X X X X Extracts X X X X X X X X Extracts X X X X ..... orce. Now, the appellant filed the appeal before the Commissioner (Appeals) but as on the date of filing the appeal before the Commissioner, the appellant was uncertain about the outcome of the Order-in-Appeal and the due date to file TRAN-1 was fast approaching therefore the appellant decided to transfer the credit into TRAN-1 otherwise the appellant would have lost the entire credit if the same was not transferred into TRAN-1. Subsequently, the Commissioner (Appeals) remanded the matter back to the original authority with certain directions to examine the refund claim of the appellant on merits keeping in view the decisions of the Tribunal and the Circular No.120/2010 issued by the Board - the Commissioner (Appeals) has wrongly considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled a refund claim on 27.02.2013 for ₹ 43,91,346/- under Notification No.05/2006-CE read with Rule 5 of CCR 2004 for the period February 2012 to March 2012. The Department issued a SCN proposing to reject the refund claim, the appellant filed detailed reply to the SCN and after following the due process, the original authority sanctioned a partial refund of ₹ 11,92,412/- and rejected the refund of ₹ 31,98,934/- on the ground that the refund rejected was pertaining to the period prior to 27.02.2012 as the credit did not pertain to the claim period. Aggrieved by the partial rejection, the appellant filed appeal before the Commissioner (Appeals) and Commissioner (Appeals) has remanded the matter to the original authority for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LT 662 (SC). CCE Vs Gas Authority of India, 2008 (232) ELT 7 (SC). CCE Vs Toyo Engineering India Ltd., 2006 (201) ELT 513 (SC). CCE Vs Champdany Industries, 2009 (241) ELT 481 (SC). GTC Industries Ltd. Vs CCE, 1997 (94) ELT 9 (SC). CCE Vs Brindavan Beverages, 2007 (213) ELT 487 (SC). 4.1. He further submitted that Order-in-Original was passed on 31.08.2017 and appellant filed appeal before the Commissioner and on the date of filing the appeal before the Commissioner, the appellant was uncertain about the outcome of the Order-in-Appeal and the due date to file the TRAN-1 was fast approaching, therefore the appellant decided to transfer the credit into TRAN-1 otherwise the appellant would have lost the entire credit if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod pertaining to February 2012 to March 2012 and the claim was made under Notification No.05/2006, in the said Notification, requirement for debiting the refund claim amount did not exist. The impugned order has wrongly treated the claim to be filed under Notification No.27/2012 instead of Notification No.05/2006. Hence the basis of the conclusion of the learned Commissioner in Para 9 is not relevant. He further submitted that the Commissioner (Appeals) has relied upon the decisions which are pertaining to interpretation of the exemption Notification and the same was not relevant to the facts of the present case. He further submitted that the original rejection of refund claim on the basis of limitation was wrong because the period of one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the refund claim by the original authority, in case the matter was adjudicated on filing the reply, the matter would have attain finality and the ground of rejection of refund vide Order-in-Original dated 22.10.2018 and Order-in-Appeal dated 16.09.2019 would not have arisen. Learned Consultant has also taken an alternative plea and requested the Tribunal to allow the credit under GST as TRAN-1 credit as the original authority vide Order-in-Original No.20/2018 rejected the refund on the ground that the credit was transferred to TRAN-1. The appellant further requests that either the credit under GST should be allowed to the appellant or the refund must be granted to the appellant. 5. On the other hand, learned AR defended the impugned ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I find that the Larger Bench decision of the Tribunal in the case of Span Infotech (supra) has held that the period of one year is to be counted from the last day of quarter in which receipt of foreign exchange was received. I also find that in the denovo demand order, the original authority has not decided the refund claim as per the directions of the Commissioner (Appeals) who has rejected the refund only on the ground that the appellant did not debit the CENVAT credit account by following the condition 2(h) of Notification No.27/2012 dated 18.06.2012. Secondly, the original authority in denovo order has rejected the refund by invoking the provisions of Section 142(3). Further, I find that had the appellant not transferred the credit to T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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