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TMI Blog2021 (12) TMI 672X X X X Extracts X X X X X X X X Extracts X X X X ..... the audit objection, however, in the said letter it is not mentioned that the case be settled and show cause notice be waived in terms of Section 11A (2) of Central Excise Act, 1944. Whether the appellant is required to file appeal with reference to the audit objection and payment made by them? - HELD THAT:- Firstly, the payment made by the appellant was not the final payment hence, the same cannot be a part of the assessment. Secondly, there is no assessment by the department which needs to be challenged. As per the audit proceeding, the department was supposed to issue show cause notice which it failed to do so, therefore, there is no occasion and reason for appellant to file appeal before the Commissioner (Appeals). The only remedy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal filed before the Commissioner (Appeals) was dismissed vide impugned order dated 29.08.2018. Both the lower authorities have rejected the claim. On the ground that since, the appellant have paid the amount the same should be treated as final payment and in terms of Section 11A (2) the case stand closed. Secondly, on the ground that after payment by the appellant the assessment stood final, therefore, without challenging the assessment by way of filing appeal refund is not maintainable in the light of Hon ble Supreme Court judgment in the case of M/s. Priya Blue Industries Ltd-2004 (172) E.L.T 145 (S.C.) and M/s. Flock India Pvt Ltd-2000 (120) E.L.T 285 (S.C.). Being aggrieved by the Order-In-Appeal the appellant filed the present appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perintendent (AR) appearing on behalf of the Revenue reiterates the finding of the impugned order. 4. I have carefully considered the submissions made by both the sides and perused the records. As regard, the issue that whether the appellant s payment of Cenvat Credit is attained finality in terms of Section 11A (2), I find firstly, the appellant have made the payment on the objection raised by the audit party as per summary of the Audit Report No 42/14/15 dated 20.07.2014 the relevant audit para is extracted below:- 4.1 The relevant audit para is at Serial No. 5 above, from the said part it can be seen that there was no agreement by the appellant and in the column of department conclusion is that the Jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me cannot be a part of the assessment. Secondly, there is no assessment by the department which needs to be challenged. As per the audit proceeding as referred above the department was supposed to issue show cause notice which it failed to do so, therefore, there is no occasion and reason for appellant to file appeal before the Commissioner (Appeals). The only remedy is to claim the refund of such payment made as per the objection raised by the audit. As regard, the judgment relied upon by the appellant it is settled that unless and until the payment along with interest is made by the assessee and the same is intimated specifically in writing to the department, the case cannot be closed under Section11A (2) of Central Excise Act, 1944. As r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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