TMI Blog2021 (12) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... , his grievance is against paras 8.3 and 9 of the impugned order as the findings recorded in these paras are in respect of the issues that were never before the Commissioner (Appela). The ends of justice will be met if these two paras are deleted and the remaining part of the order of the Commissioner (Appeals) upheld. After deleting these two paras, we uphold the remand order passed by the Commissioner (Appeals) to the adjudicating authority for consideration of the refund claims in terms of the provisions of the law and the documents submitted along with the refund claims and during the proceedings before the adjudicating authority. The provisions as contained in Subsection 1, 2 and 3 of Section 11B, the refund claim needs to ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... V2(A)170/CGST/ ME/2018 ME/REF/DC/RY/604/201 7-18 dated 21.02.2018 53,94,150/- 5 V2(A)73/CGST/M E/2019 ME/REF/AC/SM/45/2018 -19 dated 94.01.2019 22,33,616/- 2.1 The appellants have filed refund claims in terms of Rule 5 of Cenvat Credit Rules. 2.2 These refund claims were rejected by the adjudicating authority stating as follows:- 8. In order to avail Cenvat credit of service tax paid on the input service it is necessary that the same should qualify as input service in terms of definition of Input service as given by the Cenvat Credit Rules, 2004. Rule 2(l) defines input services means any service used by a provider of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.CE(NT) dated 18.06.2012, as amended, they are not eligible for total refund claim of ₹ 53,94,150/- (Rupees Fifty Three Lakh Ninety Four Thousand One Hundred Fifty only). 2.3 Against this order, the appellants have preferred appeals before the Commissioner (Appeals). While allowing the appeals, the Commissioner (Appeals) remanded the matter back to the adjudicating authority as per the order referred to in para 1 above. Aggrieved by the said order, the appellants have preferred these appeals before us. 3.1 We have heard Shri Mahesh Raichandani, Advocate, for the appellant and Shri Dilip Shinde, Assistant Commissioner, Authorised Representative, for the Revenue. 3.2 Arguing for the appellant, learned counsel submits that h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d claim as per Notification No.27/2012.CE(N.T) dated 18.06.2012, as amended. I find that the appellant has contended that they had submitted all the documents to the adjudicating authority as per Notification No. 27/2012. However, the adjudicating authority, in the instant case, has not gone into the merits of the case and did not conduct enquiry/verification of the documents submitted by the appellant and rejected the documentary evidences supporting their claim concluding various judicial decisions in support of their contention. 9. The adjudicating authority has also observed that the appellant failed to provide proof of debit entry of refund amount in the Cenvat register. However, I find that the appellant has submitted copies of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of all kinds of refund claims including those which are refundable as a consequence of appellate/revisional order and/or as a consequence of orders made by the High Court/Supreme Court. Sri Nariman pointed out that in Rule 11 (as it was in force during the period August 6, 1977 to November 17, 1980), sub-rule (3) expressly provided that where as a result of any order passed in appeal or revision under the Act, refund of any duty becomes due to any person, the proper officer may refund the amount to such person without his having to make any claim in that behalf and that sub-section (3) of Section 11B, before its amendment in 1991, was also in identical terms. But, Sri Nariman says, subsection (3) of Section 11B has now been dropped; ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equence. The assessing/approving officer (original authority) would become the monarch; whatever he says would be the law since there would be nobody interested in challenging his order. Illegal levies would become the order of the day. Such a situation, the learned counsel point out, is neither in the interest of law nor in the interest of consumer or the larger public interest. It is accordingly submitted that it would be just and proper that the amended Section 11B is held not to take in refund claims arising as a consequence of appellate or a superior court order. We do not think it is possible to agree. Such a holding would run against the very grain of the entire philosophy underlying the 1991 Amendment. The idea underlying the said p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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