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TMI Blog2023 (5) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 18/2009-S.T., dated 7-7-2009, the appellant has an option either to avail Cenvat credit or to claim refund and the appellant has chosen to claim Cenvat credit and this fact has been reflected in the records of the appellant also, but the respondent has never raised any objections all through. Earlier to the present audit, the department has conducted the audit on two occasions but the department never raised this issue. The demand cannot sustain - Appeal allowed. - Excise Appeal No.41704-41707/2013 - FINAL ORDER No. 40318-40321/2023 - Dated:- 28-4-2023 - MS. SULEKHA BEEVI C.S., MEMBER (JUDICIAL) AND MR. M. AJIT KUMAR, MEMBER (TECHNICAL) For the Appellant : Mr. R. Balagopal, Consultant For the Respondent : Ms. Ananda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the Tribunal. 3. On behalf of the appellant, the learned Consultant Shri R. Balagopal appeared and argued the matter. It is submitted by the Ld. Consultant that as per clause (d) of proviso to para 1 of the Notification No. 41/2007-ST, in order to claim refund, the assessee should not avail CENVAT credit. This condition would indicate that there is an option for the manufacturers either to avail credit or to claim refund. In the instant case, the appellants have availed the credit instead of claiming refund and therefore ought to be allowed. 4. To support his argument, the Ld. Consultant relied upon the decision in the case of Monarch Catalyst Pvt. Ltd Vs. CCE 2016 (41) STR 904 (Tri. Mumbai) and Save Industry Vs. CCE 2016 (45) S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xporter for export of the said goods; (b) the exemption claimed by the exporter shall be provided by way of refund of service tax paid on the specified services used for export of the said goods; (c) the exporter claiming the exemption has actually paid the service tax on the specified services; (d) no CENVAT credit of service tax paid on the specified services used for export of said goods has been taken under the CENVAT Credit Rules, 2004; (e) the said goods have been exported without availing drawback of service tax paid on the specified services under the Customs, Central Excise Duties and Service Tax Drawback Rules, 1995; (f) exemption or refund of service tax paid on the specified services used for expo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rlier to the present audit, the department has conducted the audit on two occasions but the department never raised this issue. 9. Further, with regard to limitation, we are of the considered opinion that the entire demand is barred by limitation as there is no material placed on record by the department to show that the appellant has suppressed the material facts with intent to evade duty. On the other hand, the appellant has placed on record two audit reports conducted by the department, wherein certain other objections were raised, but this issue was never raised which is sought to be raised now by the present show cause notice dated 27-4-2011 for the period from April 2006 to June 2009 by invoking the extended period of limitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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