2017 (7) TMI 288

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..... ief facts are that the respondent is a manufacturer of chemicals. On scrutiny of returns and records for the period January, 2001 to March 2001, it revealed that the respondent had paid the duty amounting to Rs. 10,30,893/- from their Cenvat account wherein the required balance was not available on due dates and accordingly, the Deputy Commissioner, pursuant to show cause notice confirmed the dema .....

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..... Duty. In view of the fact that the goods have been removed without payment of appropriate duty, penalty is imposable on them. The amendment no doubt was carried out in August, 2000 but the overdrawal has been effected by the Appellants during the month of January, 2001 to March, 2001 which cannot be regarded as a transition period. Accordingly, the penalty is imposable on them. However, it is not .....

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..... eposit as per Allahabad High Court Order dated 12/05/03] Penalty = Rs.5,30,000.00 [debited in CENVAT account on 06/07/04] 3. The Adjudicating Authority vide Order-in-Original dated 27.08.2007 allowed the refund of the amount of penalty deposited vide Cenvat account, Rs. 5 lakhs + Rs. 5,30,000/- totaling Rs. 10,30,000/- but was pleased to reject the refund claim of Rs. 10,30,893/- on the g .....

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..... vant date means the date of payment of duty as per Clause (f) of Explanation B given below Sub-Section 5 of Section 11 B of the Act, as applicable at the relevant time. Further, the refund claim of Rs. 10,30,893/-, paid by the respondent through Cenvat account has not arisen as a result of CESTAT order dated 28th of October, 2004, because the CESTAT only upheld the Order-in-Appeal dated 16 January .....

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..... ontentions, I'm satisfied that under the facts and circumstances and in view of the Principles of Doctrine of Merger no refund of Cenvat Credit, as ordinarily debited for payment of duty wrongly, arises. Thus, the refund of such amount of Rs. 10,30,893/- have been rightly rejected by the Adjudicating Authority. Accordingly, I set aside the Order-in-Appeal and allow this appeal, by Revenue. (D .....

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