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TMI Blog2019 (3) TMI 1184X X X X Extracts X X X X X X X X Extracts X X X X ..... stant Commissioner (AR) for Respondent ORDER Order of Commissioner (Appeals) rejecting refund of unutilised CENVAT credit on the ground that Section 109 of Finance Act, 2013 provided that amount paid under Voluntary Compliance Encouragement Scheme (VCES), shall not be refunded under any circumstances, is being assailed by the assessee-appellant. 2. Factual backdrop of this case is that appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the appellant Shri Rajiv Lutha, C.A. submitted that Section 109 states that any amount paid in pursuance of such declaration shall not be refundable under any circumstances was erroneously understood by the adjudicating authority and Commissioner (Appeals) as non-entitlement of CENVAT credit and non-extension of refund provision under the CENVAT Credit Rules, 2004 despite the fact that Board ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ative for the respondent-department, supported the reasoning and rationality of the order passed by the Commissioner (Appeals) and drawn attention of this Bench to the observation made by the Commissioner (Appeals) in para 7.4 of his order, where he categorically stated that Section 109 has overriding effect over Rule 5 of CENVAT Credit Rules, 2004 and clarificatory CBEC Circular dated 08.08.2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not have been "any amount paid in pursuance of a declaration made under sub-section (1)" since sub-section (1) says about the person making declaration to the designated authority on or before 31.12.2013, obviously about his tax dues as defined in Section 105 sub-clause (e). To avoid such confusion regarding availment of CENVAT credit, CBEC Circular dated 08.08.2013 acts as an aid. At Sr. No. 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant, that to without providing it an opportunity of being heard, is an erroneous order and the same is required to be set aside. Hence the order. 6. Both the appeals are allowed and the order passed by the Commissioner of CGST & CX (Audit-II), Mumbai vide order dated 09.03.2018 is hereby set aside. Appellant is entitled to get the refund of Rs. 5,40,671/- & Rs. 5,16,919/- as unutilised CENVAT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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