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TMI Blog2022 (3) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... ntention of Revenue in this regard is that since the necessary information required to be given in the SCN was made available to the appellants in the form of various letters and orders and that the appellant agreed to the objections raised by the audit party and thereafter voluntarily paid the observed short amount of duty. But to my opinion this contention of Department is not accedable because the issuance of SCN in a particular format is a mandatory requirement of law. The law requires the said SCNs to be issued under a specific provision of law and not as a correspondence or part of an order. Nor even the communication at the time of conducting audit of the assessees record. The sub-rule (1) of this rule mandates that such Cenvat Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mandate of section 11A of CEA and the absence of the requisite SCN the amount got deposited at the instance of audit team is liable to be refunded to the appellant. Whenever an amount is to be refunded in terms of section 11AA, 11BB, 11DD and 11AB of the Excise Act, an interest at the rate which varies from 6% to 18% has to be granted. Appeal allowed - decided in favor of appellant. - Excise Appeal No. 51056 of 2021 [SM] - FINAL ORDER No. 50172/2022 - Dated:- 28-2-2022 - MRS. RACHNA GUPTA, MEMBER (JUDICIAL) Mr. Parth Mullick, Advocate for the Appellant Mr.Mahesh Bhardwaj, Authorised Representative for the Respondent ORDER Appellant is engaged in manufacturing of various types of speakers, who after receiving a purc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the appellant had rightly claimed the Cenvat credit of the service tax paid by him on the transportation charges, the sales by him being on FOR basis. Decision of the Hon ble Apex Court in the case of Commissioner of Customs Central Excise, Aurangabad vs. Roofit Industries Ltd. Reported as 2015 (319) ELT 221 (S.C.) is impressed upon. It is further submitted that the missing invoice was also later found. Hence, the appellant was entitled for taking Cenvat Credit thereupon. The amount of duty as was obtained by the Officers at the time of duty, accordingly, was prayed to be refunded. The rejection of refund is, therefore, impressed upon as illegal and against the procedure of the law. Ld. Counsel has laid emphasis upon the decision of De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n admitted fact that a SCN as required in law for demand of the duty found at the time of audit/ investigation, to not to have been paid has been issued to the appellant. Though the contention of Revenue in this regard is that since the necessary information required to be given in the SCN was made available to the appellants in the form of various letters and orders and that the appellant agreed to the objections raised by the audit party and thereafter voluntarily paid the observed short amount of duty. But to my opinion this contention of Department is not accedable because the issuance of SCN in a particular format is a mandatory requirement of law. The law requires the said SCNs to be issued under a specific provision of law and not as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceeding further in the matter. The Circular is binding on the Departmental authorities. Hence, the Hon ble Court held that in absence of any such SCN, Department cannot seek recovery of the amount. Hon ble Delhi High Court in Digipro Import Export (supra) case has observed as follows:- It is indeed extraordinary that officers at the level of a Superintendent would have such vast powers of collecting duty on the spot without even a quantification of the duty amount preceded by a Show Cause Notice (SCN). No attempt has been made to demonstrate that the above is a procedure known to law. It actually points to the opposite. And that is what makes it inexcusable. It was also held as follows:- 19 . This illegal practice adopted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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