9911796707
TMI Blog2019 (8) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... dent (AR) For the Appellant Mr. Mohd. Ibrahim, Advocate For the Respondent ORDER Per: S.S GARG The present appeal has been filed by the Revenue against the impugned order dated 27.08.2018 passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) has allowed the refund of ₹ 47,29,610/- (Rupees Forty Seven Lakhs Twenty Nine Thousand Six Hundred and Ten only) by way of re-credit in their cenvat credit along with interest. Briefly the facts of the present case are that the respondents are engaged in the manufacture of cut and polished granite slabs, monuments and articles thereof falling under Chapter 25 of Central Excise Tariff Act, 1985. During the audit of records by the departmental officers, it was noticed that they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said order was not accepted in review and the remaining amount of ₹ 47,29,610/- (Rupees Forty Seven Lakhs Twenty Nine Thousand Six Hundred and Ten only) is not eligible for sanction since it is not covered under the said CFO dated 29.09.2016 there being no cause of action meriting refund and also as there is no such provisions in the Central Excise Act, 1944 for refund of cenvat credit reversed under protest. Thereafter, the Assistant Commissioner vide Order-in-Original dated 05.07.2017 sanctioned the refund by allowing to take credit of ₹ 2,33,45,568/- (Rupees Two Crore Thirty Three Lakhs Forty Five Thousand Five Hundred and Sixty Eight only) in their cenvat account and rejected the refund claim of ₹ 47,29,610/- (Rupees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is entitled to the refund of ₹ 47,29,610/- (Rupees Forty Seven Lakhs Twenty Nine Thousand Six Hundred and Ten only). He further submitted that vide Circular No. 1053/2/2017-CX dated 10.03.2017, CBEC has clarified as under: "26 (iii) If the Department contemplates appeal against the order of the Commissioner (A) or the order of CESTAT, which is in favour of the appellant, refund along with interest would still be payable as per the time limits prescribed in the law or in the order, unless such order is stayed by a competent Appellate Authority. It is important to note that in such cases of consequential refund, besides filing of appeal against the order, it is also necessary that a protective demand of the refunded amount be issued u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for the period from January 2011 to June 2011. The Hon'ble CESTAT, Bangalore vide its F.O. No. 20857-20859/2016 dated 29.09.2016 has decided the case on merits and allowed the input credit on HSD oil to the appellant. The respondent now cannot take a stand that the said amount is not covered under the CESTAT order. It is not the fault of the appellant that no show-cause notice was issued. The issue of non-issuance show-cause notice was not at all considered by the respondent and has not discussed in his order. Further the Hon'ble Tribunal has categorically held that, the appellant as EOU can claim cenvat credit for the duty paid on HSD oil used as fuel and when they are eligible to avail the benefit of the said notification. Further depar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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