9911796707
TMI Blog2015 (5) TMI 444X X X X Extracts X X X X X X X X Extracts X X X X ..... is from April 2007 to April, 2008 and the cenvat credit involved is Rs. 4,07,225/-. The period of dispute in Appeal No.E/2717 of 2012 is from May, 2008 to August, 2009 and the cenvat credit involved is Rs. 5,23,172/-. In this case, the respondent initially had reversed the cenvat credit for both these periods, even before issue of the show cause notice though the reversal was under protest. Subsequently, in respect of the reversal of the cenvat credit of Rs. 4,07,225/- for April , 2007 to April, 2008 period, a show cause notice dated 29.05.2008 was issued for confirmation of the cenvat credit demand along with interest and imposition of penalty, which resulted in an order-in-original dated 18.12.2009 passed by the Asstt. Commissioner by whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner (Appeals) by the department against the Asstt. Commissioners order dated 30.12.2011 sanctioning the refund claim was dismissed vide order-in-appeal dated 18.05.2012 as devoid of merits. Against this order of the Commissioner (Appeals), the Revenue has filed an appeal No. E/2718/2012-EX(SM) before the Tribunal. 1.3. The refund claim of Rs. 5,63,172/- for the period from May, 2008 to August, 2009 was sanctioned by the Asstt. Commissioner vide order-in-original dated 30.12.2011. Against this order also, the Revenue filed an appeal before the Commissioner (Appeals), which was dismissed vide order-in-appeal dated 18.05.2012. Against this order of the Commissioner (Appeals), Appeal No.E/2717/2012-EX(SM) has been filed by the Revenue. 2. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12-SM (BR) dated 5.9.2012, that in view of this the consequential refund of cenvat credit of Rs. 4,07,225/- for the period from April, 2007 to April, 2008 is in order and as such, there is no infirmity in the Commissioner (Appeals)s order upholding the Asstt. Commissioners order sanctioning the same, that as regards the refund claim of Rs. 5,63,174/- for the period from May, 2008 to April, 2009, in respect of which the other Appeal No.E/2717/2012-EX(SM) has been filed, for this period, the definition of input serviceitself covered the outward transportation of the finished goods to the place of removal, that from a perusal of the Commissioner (Appeals)s order, it is clear that he has upheld the Asstt. Commissioners refund sanction order on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upheld by the Tribunal. For this reason only, the Commissioner (Appeals) vide order-in-appeal dated 18.05.2012 has rejected the departments appeal being devoid of merit. When the refund claim sanctioned to the respondent is consequent upon the Commissioners (Appeals) order dated 28.04.2010,which subsequently had been upheld by the Tribunal on 5.9.2012, the sanction of the refund claim is in order. Therefore, I do not find any infirmity in the Commissioner (Appeals)s order dated 18.05.2012. Accordingly, Appeal No.E/2718/EX-SM against the above order of the Commissioner (Appeals)s order has to be rejected. 7. As regards the second Appeal No. E/2718/2012 against the Commissioner (Appeals)s order dated 18.05.2012, this appeal is in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... available to the respondent for the period w.e.f. 1.4.2000. It is seen that in this regard, he has not discussed at all as to whether the Respondents sales were on FOR destination basis and if so, what is the evidence. The judgment of the Honbe Punjab & Haryana High Court in the case of Ambuja Cement (supra) and the Boards circular No.97/6/2007-ST dated 23.08.2007, would apply only if the sales are on FOR destination basis, but in this regard, there is absolutely no finding of the Commissioner (Appeals). In view of this, the matter covered by this appeal has to be remanded to the original adjudicating authority for examining this aspect. 8. In view of the above discussion, while appeal No. E/2717/2012-EX(SM) is disposed of by way of remand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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