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TMI Blog2022 (1) TMI 1342X X X X Extracts X X X X X X X X Extracts X X X X ..... This assertion of the learned counsel for the Appellant is not denied by the learned counsel for the Respondent. There is a consensus that a new ground is made out by the Tribunal while passing the impugned order. The grievance of the Appellant, that when on the completely new ground order was to be passed then the Appellant should have been given an opportunity of being heard, is not merit-less. In view of the admitted position that the ground on which the Tribunal has passed the impugned order was not the case of the Appellant or the Respondent and both were not given an opportunity of hearing, there are no option but to set aside the impugned order and restore the matters to the file of the Tribunal to decide it as per law. The issue is answered in favour of the Appellant - appeal allowed. - CENTRAL EXCISE APPEAL NO. 2 OF 2022 WITH INTERIM APPLICATION NO. 2326 OF 2022 - - - Dated:- 13-1-2023 - NITIN JAMDAR AND ABHAY AHUJA, JJ. For the Appellant : Mr. Vikram Nankani, Senior Advocate with Mr. Prithwiraj Choudhari i/b. Mr. Virendra Pandey. For the Respondents : Mr. Satyaprakash Sharma with Ms. Neeta Masurkar. P.C. : By this appeal under section 35 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Commissioner (Appeals) who partially allowed the refund claim amounting to Rs.5,90,99,124/- with consequential relief in favour of the Appellant. Against the above-said order-in-appeal, the Appellant filed an appeal on 27 January 2020 for the prior period to 27 October 2016 for the rejected amount of Rs.6,13,77,646/- before the Appellate Tribunal. 5. The Respondent also being aggrieved against the abovementioned order-in-appeal granting refund of Rs.5,90,99,124/-, filed an appeal on 17 March 2020 before learned Appellate Tribunal against the said order along with stay application. The learned Appellate Tribunal on hearing the stay application of the Respondent, dismissed the same on 07 September 2020. Thereafter the Respondent granted refund amount of Rs.5,90,99,124/- on 12 November 2020 without interest thereon. The Appellant filed an appeal against the order-in-original dated 4 November 2020 on 20 January 2021 before the Commissioner (Appeals) which was dismissed vide order-in-appeal dated 08 March 2021. The Respondent also issued a show cause notice dated 11 January 2021 for recovery of the refund of Rs.5,90,99,124/- already granted, along with interest. The appeal of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1B, and out of the total credit reversed by them, part cash refund of the credit has been allowed and part has been rejected. The arguments on behalf of the Revenue were that the special provisions were incorporated by the Finance Act, 2016 while giving retrospective effect to the Notification No.09/2016-ST, prescribing that all the refund applications for the tax paid should be made within six months from the date of assent of Finance Act, 2016 and section 11B of the Central Excise Act is not pari materia with the Section 103 and therefore the appellant is bound to comply with and/ or satisfy the compliance of sub-section (3) of Section 103 of the Finance Act, 1994 and was bound to make an application within six months from the date of assent of President. It was contended that the condition under which the exemption or the benefit is given needs to be strictly construed. It was further contended by the Revenue that the definition in Section 11B of Central Excise Act is not unreasonable just because it does not include the time of knowledge on the part of the assessee. These were the rival contentions before the Tribunal. 10. The Tribunal, however, proceeded on a different foot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed the refund claims and the said amount will not lapse as per Section 142 of the Central Goods and Services Tax Act, 2017. 4.7. The decision of Bangalore Bench in the case of Wave Mechanics, supra was followed by us in the case of Alumatic Cans Pvt. Ltd. [Final Order No A/85937/2020 dated 02.12.2020]. 4.8 In the additional submissions filed, Appellant have relied upon the following decisions to argue that the amount of the CENVAT credit should be refunded to them in cash, Thermax Ltd [2019 (31) GSTL 60 (GUJ)]; Toshiba Machine (Chennai) Pvt Ltd [2019 (27) GSTL 216 (T-Chennai)] Rawatwasia Ispat Udyog Pvt Ltd [2019 (26) GSTL 196 (TChandigarh)] Oswal Castings Pvt Ltd [2019 (24) GSTL 649 (TChandigarh)] SMG International [2019 (21) GSTL 446 (T-Chandigarh)] We do not find any merits in the submissions made by the Appellants, as the cases, which are referred above are the cases in which dispute with regards to the CENVAT Credit has been adjudged subsequent to changeover from the previous regime of Central Excise and Service Tax to the regime of GST. In all the Cases the refund application or the rebate claim was filed before 01.07.2017 and determined subsequent to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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