2017 (8) TMI 306 - AT - Central Excise

Refund of unutilised CENVAT credit - Rule 41 of the CESTAT Procedure Rules, 1982 - pendency of appeal - Held that - the impugned order is in challenge before this Tribunal and the fate of the same is pending before this Tribunal, therefore, in consequence of the impugned order, any exercise done by the adjudicating authority, as per directions in the impugned order, shall be futile, till disposal of the appeal - decided in favor of applicant.

Summary

Issues:
1. Entitlement to refund of unutilized Cenvat Credit due to factory closure.

Analysis:
The applicant filed a refund claim for unutilized Cenvat credit in their account, which was initially rejected by the adjudicating authority but later sanctioned. The Revenue challenged this sanction before the ld. Commissioner (Appeals), arguing that the raw material used by the applicant did not qualify as 'input' for Cenvat Credit. The Commissioner (Appeals) noted that additional grounds presented by the Revenue were not submitted before the adjudicating authority, and as per Rule 5(3) of Central Excise (Appeals) Rules, 2001, these grounds should have been examined by the adjudicating authority. Therefore, the case was remanded back to the original adjudicating authority for further examination.

The applicant approached the Tribunal against the order of the Commissioner (Appeals), seeking directions to the adjudicating authority not to take any action during the appeal's pendency. The ld. AR argued that since the file had been returned to the adjudicating authority, proceedings could be re-initiated. However, the Tribunal held that any action by the adjudicating authority as per the directions in the impugned order would be futile until the appeal's disposal. Consequently, the Tribunal directed the adjudicating authority not to take coercive action against the applicant during the appeal process.

During the hearing, the appellant mentioned a suo moto notice for personal hearing and a show cause notice issued by the Commissioner of Central Excise. The ld. AR clarified that the show cause notice was for protective demand only. In the interest of justice, while proceedings in compliance with the Commissioner (Appeals) order could continue, the Revenue was instructed not to take any coercive action against the appellant until further orders were issued.