TMI Blog2023 (6) TMI 540X X X X Extracts X X X X X X X X Extracts X X X X ..... E, JAIPUR [ 2017 (5) TMI 1021 - RAJASTHAN HIGH COURT] , M/S. RAYMOND LTD. VERSUS CCE MUMBAI III [ 2011 (6) TMI 530 - CESTAT, MUMBAI] , time and again have held that when the assessee is not in a position to utilize the credit, the amount is permitted to be refunded in cash although the same has been paid through their Cenvat Credit account. In the instant matter the appellant herein has requested for cash refund on the ground that they are working under exemption notification 30/2004-CE, dt. 9.7.2004 and hence not able to utilize the Cenvat Credit. Therefore the appellant is entitle for the cash refund. In view of totality of the facts involved herein viz. that the basis of issuing the show cause notice and of passing of the orders by bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty and to refund the remaining Rs.45 lakhs in cash on the ground that they are working under exemption notification 30/2004-CE, dt. 9.7.2004 and hence are not able to utilize the Cenvat Credit, however the same was rejected by the Adjudicating Authority vide Order-in-Original dated 6.7.2006. The 1st Appellate Authority vide Order-in-Appeal dated 23.8.2006 allowed the refund of Rs.45 lakhs in cash after adjusting the penalty of Rs.5 lakhs. On the other hand, the jurisdictional Asstt. Commissioner in compliance with the Orderin- Appeal, sanctioned the refund of Rs.47,45,015/- in cash vide Order-in-Original dated 30.11.2006 and the said amount was paid to the appellant. Subsequently a protective show causecum- demand notice dated 29.5.2007 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lier and another order dated 25.5.2018 of this Tribunal by which the application for Restoration of Appeal filed by the appellant herein was dismissed and prayed for dismissal of the appeal filed by the appellant. Undoubtedly the demand of refund of Rs.47,45,015/- has been confirmed and ordered to be recovered by both the authorities below on the strength of the order dated 18.11.2016 passed by this Tribunal against the Order-in-Appeal dated 23.8.2006. Even the show cause-cum-demand notice in issue was also issued on the premise that the department has challenged the appellate order before this Tribunal. When the said order of the Tribunal has been set aside by the Hon ble High Court by remanding the matter back to this Tribunal and upon re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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