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TMI Blog2013 (7) TMI 640X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant in cash, as there was no credit available with them in RG-23A Part-II records - There is no dispute about the fact that the appellant is availing benefit of area based exemption notification and as such is not in a position to utilise the cenvat credit - There is no justification for allowing the refund by way of credit to the cenvat credit account, which is not even being maintained by the appellant - The same was paid by the appellant in cash and eligibility of refund having been finally decided in their favour, the same has to be refunded in cash – Decided in favor of Assessee. - 2986/2011, 4049/2010 and E/2932/2011-SM - Final Order Nos. 56794-56796/2013-SM(BR) - Dated:- 27-6-2013 - Ms. Archana Wadhwa, J. For the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue before the Hon ble High Court of Himachal Pradesh. 4. When the Revenue s appeal against the Tribunal order was pending before the Hon ble High Court of H.P., the matter was taken up again by the original adjudicating authority, who vide his order-in-original dated 19.02.2010 sanctioned the refund claim in terms of the order passed by the Commissioner (Appeals) on 04.06.2009, as upheld by Tribunal but credited the same in the Consumer Welfare Fund. I may here, refer to the said decision of the Assistant Commissioner, though the same is not the impugned order in the present appeals. The Assistant Commissioner, while examining the unjust enrichment angle, called for a report from the appellants jurisdictional Range Officer, who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals) who vide his order-in-appeal No. 129/2010 examined the entire issue and held that there was no unjust enrichment inasmuch as duty has not been recovered from the buyers. He accordingly allowed the assessee s appeal. Revenue is in appeal against the said order of Commissioner (Appeals) being Appeal No. E/4049/2010. 5. It is also seen that the order of the original adjudicating authority allowing the refund claim but crediting the same to Consumer Welfare Fund vide his order-in-original No. 831/09 dated 19.02.2010 was also appealed against by the Revenue before the Commissioner (Appeals), on the ground that the refund was not required to be sanctioned inasmuch as Revenue s appeal against the Tribunal s order No. 1370/09-SM dated 19. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find that the sole ground of the Revenue is that the Tribunal s final order No. 1370/2009-SM has not been accepted by them and further challenged in the Hon ble High Court of Himachal Pradesh. However, I find that the Hon ble High Court of Himachal Pradesh has now decided the issue and vide their order dated 16.06.2012 has rejected the Revenue s appeal. As such the Revenue s appeal No. E/4049/2010-SM has become infructuous and is required to be rejected on the said ground. 8. As regards the other two appeals, one by the Revenue and one by the assessee, I find that both the said appeal are against the order of Commissioner (Appeals) vide which he has sanctioned the refund amount but has held that the same has to be credited in the cenvat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,213/-is required to be refunded to the appellant in cash. There is no justification for allowing the refund by way of credit to the cenvat credit account, which is not even being maintained by the appellant. The same would continue to lie in the credit without its use, as the appellant is not working under cenvat credit. It has to be kept in mind that this is not refund of the amount, which was originally debited by the appellant from their cenvat account. The same was paid by the appellant in cash and eligibility of refund having been finally decided in their favour, the same has to be refunded in cash. Accordingly, I allow the appellant s appeal with consequential relief to them. All the three appeals are disposed of by rejecting two app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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