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TMI Blog2019 (6) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant is not time barred and they are entitled for the refund. However as the Appellate Commissioner has not given his findings on eligibility of refund on merits i.e whether the Appellant are otherwise eligible for the credit in the light of the FTP Scheme, we consider it appropriate to remand back the matter to the Appellate authority for deciding this limited aspect. Appeal allowed by way of remand. - Excise Appeal No. 947 of 2010 - A/10955/2019 - Dated:- 3-6-2019 - MR. RAMESH NAIR, MEMBER (JUDICIAL) And MR. RAJU, MEMBER (TECHNICAL) Shri. Anand Nainawati, Advocate for the Appellant Ms. Nitina Nagori, Authorized Representative for the Respondent ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that since the refund claim is time barred hence there is no need to look into the admissibility of refund on merits. Aggrieved, the Appellants has filed present appeal. 2. Ld. Counsel Shri Anand Nainavati appearing for the appellant submits that the goods were manufactured from indigenously procured inputs on which cenvat credit was availed by the Appellant. Notification No. 40/2006-Cus dated 01.05.2006 allowed the duty free imports under DFIA subject to certain conditions. The exemption is available subject to various conditions including one of the condition that the export obligation as specified in the said authorization (both in value and quantity terms) is discharged within the period specified by exporting resultant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excess duty and not for reversal of excess credit. 3. On the other side Ms. Nitina Nagori, Ld. Joint Commissioner (AR) appearing for the revenue reiterates the findings of the impugned order. She submits that the reversal of credit cannot be considered as having been done Under Protest and hence credit refund is not admissible. 4. Heard both the sides and perused the record of the case. We find that the Appellant had reversed the credit in view of dispute in interpretation to the availment of cenvat credit. They voluntarily came forward to debit the credit in case it is found that the same is not available to them. However since they were of the view that they are eligible for the credit they also intimated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Pistons Ltd. 1990 (46) ELT 3 (SC), the Apex Court while granting refund held that there is no prescribed form of protest. In case of Tamil Nadu Petro Products 2008 (226) ELT 51 (Mad.), the Hon ble High Court held that the making of representation in that case the same has to be understood as protest. Similarly in case of Arignar Anna Sugar Mills 2012 (277) ELT 63 (Mad.), the Hon ble High Court has held that it is immaterial that procedure prescribed under Rule 233B of erstwhile Central Excise Rules was not followed. In the present case we find that the intention of the Appellant making reversal Under protest was apparent from content of their letter. In case of Shree Shyam Filaments 2014 (303) ELT 195 (RAJ.), the Hon ble High Court has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efund of credit is permissible. The claim of the Appellant is not time barred and they are entitled for the refund. However as the Appellate Commissioner has not given his findings on eligibility of refund on merits i.e whether the Appellant are otherwise eligible for the credit in the light of the FTP Scheme, we consider it appropriate to remand back the matter to the Appellate authority for deciding this limited aspect. The matter is thus remanded back to the Appellate Commissioner who shall decide the eligibility of refund of credit after granting an opportunity of being heard to the Appellant. Appeal is allowed by way of remand to the Commissioner (Appeals) in the above terms. (Order pronounced in the open court on 03.06. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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