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TMI Blog2007 (8) TMI 573X X X X Extracts X X X X X X X X Extracts X X X X ..... r sanctioning the refund claim - appeal allowed. - E/575-579/2005 - 1046-1050/2007 - Dated:- 24-8-2007 - Shri P. Karthikeyan, J. REPRESENTED BY : Shri M.N. Bharathi, Advocate, for the Appellant. Shri B.L. Meena, SDR, for the Respondent. [Order]. M/s. Tuticorin Alkali Chemicals and Fertilisers Limited (hereinafter, also TAC) manufacture various products such as Ammonium Chloride, Ammonium Bicarbonate, Sodium Bicarbonate, Soda ash etc. They avail Cenvat credit of duty paid on inputs i.e., packing materials and export some quantity of Ammonium Chloride (fertilizer grade). They filed several refund claims for the accumulated Cenvat credit on account of packing materials as their product, namely, fertilizers are exempt from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the appellants had been paid the impugned amounts, sanctioning their refund claims in accordance with law by the competent authority. If the department felt that the amounts had been sanctioned erroneously, the appropriate course of action was to issue a show cause notice under Section 11A of the Central Excise Act and not just filing an appeal under Section 35E(2). As no show cause notice was issued, recovery of the refund amounts already sanctioned could not be ordered. Therefore, the impugned order was liable to be set aside. He also sought to seek support from the decision of the Tribunal in Panyam Cements Mineral Indus. Ltd. v. CCE, Hyderabad reported in 2004 (178) E.L.T. 434 (Tri.-Bang.) and Circular No. 423/56/98-CX, dated 22-9- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants had not fulfilled the conditions prescribed under Rule 5 of the CCR, 2002. The Commissioner (Appeals) had found that the appellants were paying about a crore every month from PLA and only about Rs. 20 lakhs from Cenvat credit. Therefore, they were in a position to utilize Cenvat account refund of which was allowed. I find that Rule 5 of the CCR, 2002 grants a substantive right to the assessee for obtaining refund of accumulated Cenvat credit if the same cannot be adjusted for any reason . As the rule approves sanction of refund where adjustment of the credit is not possible or any reason , the refund cannot be denied if the same was lying unutilized in the Cenvat account and the assessee claimed refund of the same. 6. I also fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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