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TMI Blog2017 (6) TMI 425X X X X Extracts X X X X X X X X Extracts X X X X ..... removed as such and in this case also, the duty was paid when the invoice was issued to the buyer JSW Steels Ltd. The appellant has cleared the inputs as such by paying the duty and therefore, the payment of duty at the insistence of the audit second time is wrong and illegal and therefore, the appellant is entitled to refund of the same as per Section 11B of the CEA. Appeal allowed - decided in favor of appellant. - E/2619/2010-SM - 20841/2017 - Dated:- 7-6-2017 - Shri S. S. Garg, Judicial Member Mr. Harish Bindhu Madhavan, Advocate For the Appellant Shri K. T. Pakshirajan, AR For the Respondent ORDER Per: S. S. Garg The present appeal is directed against the impugned order dated 31.5.2010 passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Commissioner of Central Excise, E2 Division, Bangalore in Order-in-Original No.14/2009 (R) dated 29.4.2009 rejected the refund claim of ₹ 22,53,330/- on the grounds that, the M/s. JSW Steel Ltd. has availed the credit on receipt of the goods from M/s. Alstom. Appellant has raised three invoices cited supra on 31.8.2007 without receiving or despatching the goods to M/s. JSW Steel Ltd. Further, they have availed the credit on 1.9.2007, therefore, it is not the case that assessee has initially availed the credit and paid the duty erroneously, instead they have first paid the duty and then availed the credit on the invoices consigned to their customer to make good the erroneous payment of duty made in the invoices mentioned above, where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 11B. He also submitted that appellant paid the duty at the insistence of the departmental audit team on 14.1.2008 vide TR6 challan and they have filed the refund claim on 28.11.2008 which clearly shows that the refund claim is filed within the due date of one year from the date of payment as prescribed in Explanation to Section 11B. He also submitted that as per Rule 3(4) read with Rule 9(1)(a)(i) of CENVAT Credit Rules, CENVAT credit availed may be utilized for payment of an amount equivalent to CENVAT credit availed on inputs, if such inputs are removed as such or, for payment of duty of excise on any final product and such invoice issued for clearance of inputs as such is an eligible document for availment of CENVAT credit. In support ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le passing the impugned order, the refund claim has been denied on the ground which has not been taken in the show-cause notice and the same is not sustainable in law. Further, I also find that the appellant at the insistence of the audit, reversed the credit on 14.1.2008 and thereafter, filed the refund on 28.11.2008 which is very much within the period of limitation. Further, I also find that as per the Rule 3(4) read with Rule 9(1)(a)(i) of the CENVAT Credit Rules, CENVAT credit availed may be utilized for payment of an amount equivalent to CENVAT Credit availed on inputs if such inputs are removed as such and in this case also, the duty was paid when the invoice was issued to the buyer JSW Steels Ltd. Further, I find that the findings o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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