9911796707
TMI Blog2012 (6) TMI 842X X X X Extracts X X X X X X X X Extracts X X X X ..... The adjudicating authority has restricted the refund claim of the assessee to an amount of ₹ 60,50,093/-. Being aggrieved by the impugned order the respondent preferred an appeal before the first appellate authority. The first appellate authority had allowed the appeal filed by the assessee and set aside the order of the adjudicating authority allowing the re-credit for ₹ 3,68,94,217/- after disallowing the application for re-credit of ₹ 60,50,093/-. 3. Hence this appeal. 4. Learned SDR would reiterate the grounds of appeal which are reproduced as under: The order passed by the Appellate Authority is not correct, proper and legal due to following reasons. The Appellate Authority failed to consider that the assessee grossly violated condition 1A stipulated in Notification No.65/2003-CE dated 06.08.2003 in as much the assessee did not utilized whole of the Cenvat credit available to him. The assessee defaulted twice in as much as he did not pay Service Tax payable by him of the material time and availed the credit of such Service Tax paid later on. If such default of the assessee was allowed for subsequently claiming refund arose due to virtue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the refund claim of the assessee. The Appellate Authority failed to consider all these material facts while passing the Order. Therefore, the order passed by the Appellate Authority was not based on full appreciation of the facts and circumstances of the case. It is demand of justice that the Appellate Authority should pass detailed and reasoned order after proper appreciation of available facts. In view of the facts and circumstances of the case, the proper way for the Appellate Authority was to remand the matter back to the Appellate Authority. 5. As against these submissions, the learned advocate would submit that the findings of lower authority are in detail and they have fairly demonstrated before the first appellate authority, their eligibility to claim the entire amount paid in cash as refund under the notification. 6. We have considered the lengthy submissions made by both the sides and perused the records, we find that the issued to be decided in the present appeal is whether the refund claims as per the Notification No. 39/2001-CE dated 31.07.2001 as amended to be reduced by ₹ 60,50,093/- or allow the entire amount of ₹ 4,29,44,310/-. It is not in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Central Excise, AR, Gandhidham has verified the claim vide his letter No. C.Ex/MP/REFUND-13/2005-06 dated 22.12.2005, CENVAT availment and utilization thereof for payment of duty and clearance of goods. As regards amendment notification no.65/2003-CE dated 06.08.2003, the claimant has presented a statement showing worksheet of invoices of goods cleared during the month of November-2005 which shows total payment of ₹ 37176285/- duty and ₹ 743541/- Cess. (i) As per the summary of payment of duty/Cess for the month of Novernber-2005, Opening Balance of input is Basic ₹ 3,80,555/- and Ed. Cess ₹ 4,859/- Capital Basic ₹ 1,78,40,545/- and Ed. Cess ₹ 3,15,923/- and Service Tax Basic ₹ 4,01,835/- and Ed. Cess ₹ 7,969/- and Closing Balance were Nil in CENVAT account for the month. (ii) CENVAT credit availed during the November-2005 is ₹ 22,82,319/- for duty and ₹ 45,650/- for Ed. Cess on input, on capital goods credit availed is ₹ 3,77,536/- for duty and ₹ 6,207/- and ₹ 1,08,258/- for duty and ₹ 2,159/- for Ed. Cess and Service Tax. (iv) Copy of statement showing duty payment from P.L. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount paid through P L A. Further when the appellants have not taken the credit of ₹ 60,50,903/- in the CENVAT Credit Account in November-2005, the Lower Adjudicating Authority assumption that there was as closing balance of credit in November, 2005 is not justified and not backed by law. Apparently the Lower Adjudicating Authority has not disputed the admissibility of CENVAT credit or otherwise on the invoices pertaining to month of March, 2005 to November-2005 which is outside the scope of present appeal. So long as the conditions of the said Notification fulfilled and the credit balance was NIL on the last date of December-2005 the amount paid in P.L.A. during December are liable to be refunded in full. Notwithstanding the above, even for the sake of argument if the Lower Adjudicating Authority's view is considered that there was a balance of CENVAT credit available on the last date of November-2005, the right course of action could have been that the refund amount sanctioned their P.L.A. for the month of November-2005 to be restricted to the extent and the appellants could have carry forwarded this surplus P.L.A. amount to the next month. As contended by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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