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TMI Blog2015 (4) TMI 890X X X X Extracts X X X X X X X X Extracts X X X X ..... e value of export obligation. Thus, it is clearly evident that the applicant is eligible to avail the cenvat credit on merit. - Challan is not a document for the purpose of availment of the cenvat credit. It is also observed that the appellant could have taken the credit in the cenvat account on the basis of Bill of Entry. It is revealed from the record that the appellant paid the duty by challan on the basis of the Bill of Entry generated through EDI on 13.3.2006. It is observed that the appellant has shown the reference of the Challan in their cenvat account. In my considered view, the appellant could have mentioned the reference of Bill of Entry number in their cenvat account. The appellant is also eligible to avail credit on the basis o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the licence in a shorter period and therefore they have taken credit in the Cenvat account. 2. A show cause notice dtd 3.1.2008 was issued proposing to recover the amount of ₹ 31,06,128/- alongwith interest from them as wrongly taken as cenvat credit and also to impose penalty. The Adjudicating Authority disallowed the cenvat credit of ₹ 31,06,128/- alongwith interest and also imposed penalty of equal amount of cenvat credit under Rule 15 of the Cenvat Credit Rules 2004 read-with section 11AC of the Central Excise Act 1944. By the impugned order, Commissioner (Appeals) dismissed the appeal filed by the appellant. 3. The Learned Advocate for the appellant submits that EPCG licence was redeemed on 23.11.2010. He drew the at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horised Representative for the Revenue submits that they have already filed the refund claim of the amount, which was rejected by the Commissioner (Appeals) and therefore they have no right to avail the cenvat credit of the said amount. He also submits that there are two course of action available to the appellant in so far as filing of refund or availing credit in the cenvat account. 6. But, the appellant had claimed the refund of the duty and therefore, they have no right to avail the cenvat credit in the Cenvat Account. He submits that in this case that doctrine of election will come into play. He relied upon the decision of Honble Andhra Pradesh High Court in the case of Andhra Cylinders Pvt Ltd vs Deputy Commissioner of Customs a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rlier and therefore they were compelled to avail cenvat credit as per Notification 97/2004. 9. It is seen from the correspondence that the DGFT authority made an enquiry of utilisation of the said amount ₹ 31,06,128/- The appellant by their letter dtd 23.2.2010 informed DGFT authority that this amount was availed by them as cenvat credit towards excise duty. DGFT authorities redeemed the EPCG licence by letter dtd 23.11.2010 as the appellant fulfilled export obligation. 10. The main argument of the Learned Authorised Representative for the Revenue is that the appellant opted the procedure of refund claim and therefore availment of cenvat credit is irregular. There is no dispute that the appellant is entitled to avail the cenvat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t cannot be denied on procedural lapse. 12. The Learned Authorised Representative strongly relied upon the decision of the Honble Andhra Pradesh High Court in the case of Andhra Cylinders Pvt Ltd (supra) for application of the doctrine of election. I find that the facts, in the case of Andhra Cylinders Pvt Ltd (supra) in respect of filing of writ petition vide Article 226 of the Constitution of India when the appeal pending before CESTAT. The relief under Article 226 of the Constitution of India is not available, when the petitioner opted any other alternative remedies, which is not applicable in the present case. 13. The Honble Supreme Court in the case of Narmada Chematur Pharmaceuticals Ltd (supra) held that optional exemption n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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