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TMI Blog2010 (6) TMI 693X X X X Extracts X X X X X X X X Extracts X X X X ..... e engaged in the manufacture of sponge iron classifiable under Section 72 of the Central Excise Tariff Act, 1985. In the course of inspection conducted on 30-3-2005 at the premises of the respondents, it was revealed to the department that respondents had wrongly availed the Cenvat credit to the tune of Rs. 26,28,957/-. Pursuant to the directions issued by the department for debiting the said amount, the respondents debited the said amount under protest. The respondents thereafter filed the application for refund claim under Section 11B of the Central Excise Act, 1944 for refund of Rs. 26,28,957/-. Pursuant to the said application, a show cause notice came to be issued to the respondents on 21-7-05. The same was replied by the respondents i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e process of manufacturing of capital goods at site upto the month of December, 2004, the Central Excise Range Raigarh has directed them to debit amounting to Rs. 1,91,953/- and Education Cess of Rs. 2,561/- vide letter No. Misc./BS SPONGE-RGH/2004/434 dated 21-2-2005. (v) Meanwhile, the Officers of DGCEI Regional Unit, Raipur paid a visit to the plant premises of the party on 30-3-2005 and without any authority of law, or any confirmed demand under Section 11A of the Central Excise Act, 1944 suo motu directed them to debit an amount of Rs. 26,28,957/-. (vi) The Intelligence Officers have adopted to pressure tactics and forced to debit the said amount which the party did in duress under protest. (vii) It may be interesting to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mal, Post Gerwani, Raigarh have filed this appeal which is directed against the order-in-original No. 28/Ref/2005, dated 20-9-2005 passed by the Assistant Commissioner, Central Excise Division, Bilaspur. 2. The appellant are manufacturers of sponge iron. They filed a refund claim for an amount of Rs. 26,28,957/-, which was deposited by them under protest consequent upon the visit of officers of DGCEI, Raipur. They stated that no duty is payable by them on merit. In fact no notice had been issued or demand confirmed in date which warranted refund of duty by the Department. The lower authority after considering the submissions made by the appellants rejected the refund claim on the ground that the same was premature. The appeal is directed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pending at the relevant time and therefore, the Commissioner (Appeals) could not have granted the refund. He sought to rely upon the decision of the Tribunal in the case of Pearl Polymers Ltd. v. CCE, Raigad reported in 2004 (174) E.L.T. 41 (Tri-Del). 6. On the other hand, learned advocate submitted that at the relevant time, no adjudication proceedings in relation to alleged wrongful availment of Cenvat credit was pending and not even a show cause notice was issued and therefore, there was no case for rejection of the refund claim. He also submitted that pursuant to the order passed by the Commissioner (Appeals), the refund amount has already been paid to the respondents. 7. Perusal of the order passed in the matter undoubtedly discl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argued that the authorities have issued show cause notice in relation to alleged wrongful availment of Cenvat credit on 7-2-06. As already stated above, contemporaneous records vis-a-vis the order passed by the adjudicating authority as well as by the Commissioner (Appeals) do not disclose any pendency of any such investigation proceedings. To the specific query to the learned DR as to what sort of investigation was carried out subsequent to 30-3-2005, attention was sought to be drawn to para 11 of the show cause notice which read thus : 11. In this regard, a statement of Shri Ashish Agarwal, Director was also recorded on 5-1-06 under Section 14 of the Central Excise Act, 1944, wherein he inter alia stated that; he has read the statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not mean that the assessee who claims to have not committed any default in payment of amount or in availing the Cenvat credit can be compelled to pay the amount and can be restrained from utilising such amount indefinitely, nor in such a case, if the assessee approaches the department with the application for refund of the same, it can be just rejected on the ground that the department would like to initiate necessary proceedings at its sweet will. Powers which are given to the departmental authority to ensure proper recovery of the revenue are to be exercised diligently and not at the sweet will of the officers of the department. In the case in hand, apparently the respondents had debited Rs. 26,28,957/- under protest. Further they had fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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