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2019 (8) TMI 75 - AT - Central ExciseRefund claim - duty paid under protest - period from August 2009 to June 2011 - HELD THAT - The Commissioner (Appeals) has given detailed reasons for allowing the refund claim of 47, 29, 610/- - further as per the Circular dated 10.03.2017 the Department is under obligation to refund the amount even when the appeal is pending and no stay is granted by the higher courts. Refund allowed - appeal dismissed - decided against Revenue.
Issues:
1. Refund claim based on CESTAT order dated 29.09.2016. 2. Department's refusal to sanction refund of a specific amount. 3. Appeal filed by the Revenue before the High Court. 4. Commissioner (Appeals) allowing the refund claim. 5. Legal implications of pending appeal without stay order. Issue 1: Refund claim based on CESTAT order dated 29.09.2016: The appellant, engaged in manufacturing granite products, availed cenvat credit on HSD oil under protest. After a show-cause notice and subsequent appeal, the CESTAT allowed the refund claim based on their order dated 29.09.2016, prompting the appellant to file for a refund of ?2,80,75,178. However, the Department disputed the claim, leading to further proceedings. Issue 2: Department's refusal to sanction refund of a specific amount: The Department, despite not accepting the CESTAT order in review, sanctioned a partial refund of ?2,33,45,568 but rejected the remaining amount of ?47,29,610. The Assistant Commissioner's decision was based on the premise that the latter amount was not covered under the CESTAT order dated 29.09.2016, and there was no provision in the Central Excise Act for refund of cenvat credit reversed under protest. Issue 3: Appeal filed by the Revenue before the High Court: The Revenue filed an appeal before the High Court against the CESTAT order, which was pending without a stay order. The Department argued that the Commissioner erred in allowing the refund without waiting for the High Court's decision, citing relevant legal precedents to support their position. Issue 4: Commissioner (Appeals) allowing the refund claim: The Commissioner (Appeals) upheld the refund claim of ?47,29,610, emphasizing that the appellant was entitled to the refund based on the CESTAT order and relevant legal provisions. The Commissioner's decision was supported by detailed reasoning and previous tribunal judgments, ultimately leading to the dismissal of the Revenue's appeal. Issue 5: Legal implications of pending appeal without stay order: The Commissioner's decision was further justified by a circular issued by the CBEC, clarifying that in cases where the Department appeals against a favorable order without a stay, the refund with interest remains payable unless stayed by a competent authority. This circular, along with the absence of a stay order from the High Court, reinforced the Commissioner's ruling in favor of granting the refund. In conclusion, the Commissioner's decision to allow the refund claim of ?47,29,610 was upheld, emphasizing the appellant's entitlement based on the CESTAT order and legal provisions, despite the pending appeal before the High Court. The circular from the CBEC supported the decision, highlighting the obligation to refund amounts in such scenarios.
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