2007 (6) TMI 337 - AT - Central Excise

Summary

Issues:
Appeal against the order of the Commissioner (Appeals) regarding Cenvat credit disallowance and cash refund.

Analysis:
The case involved an appeal against the order of the Commissioner (Appeals) regarding the disallowance of Cenvat credit and subsequent cash refund. The appellant had taken Cenvat credit during a specific period, which was disallowed initially by the Original Authority and later confirmed by the Commissioner (Appeals). Upon appeal to the Tribunal, it was decided that if the receipt of inputs could be verified, the credit should be allowed. The matter was remanded to the Original Authority for a fresh decision. Subsequently, the Original Authority allowed the appellant to take the credit of the disputed amount. As the appellant was availing small scale exemption and could not utilize the credit, they requested a cash refund, which was granted by the Original Authority. However, the Commissioner (Appeals) held that the Original Authority had no power to review his earlier decision and grant a cash refund.

Upon careful consideration, it was found that the Commissioner (Appeals) was legally correct in stating that the Original Authority could not review his earlier decision and grant a cash refund. The Department had filed an appeal against the cash refund, but no show cause notice had been issued for the recovery of the refund. The appellant's representative argued that if the credit was given, they would be able to utilize it as they were currently paying duty. It was mentioned that the outcome of the appeal would have no consequence for the Department since no show cause notice had been issued for the recovery of the refund. Therefore, the appeal was allowed, holding that the refund already paid to the appellant could not be recovered.

In conclusion, the Tribunal allowed the appeal by the appellant, determining that the refund already paid to them could not be recovered. The decision was based on the legal soundness of the Commissioner (Appeals)'s findings regarding the Original Authority's lack of power to review and grant a cash refund without proper procedure.