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TMI Blog2023 (6) TMI 1239X X X X Extracts X X X X X X X X Extracts X X X X ..... s factual background, both the lower authorities were not correct in rejecting the refund claim of the appellant on the ground of pendency of proceedings when no stay has been given by any higher court in the earlier order regarding eligibility of Cenvat credit. It is further noted that the Ld. Commissioner (Appeals) had also passed orders on various other grounds which was never alleged while issuance of the show cause notice and thus the appellate order to that extent goes beyond the allegations raised in the SCN and cannot be sustained on this ground also. Appeal allowed. - Excise Appeal No. 75938 of 2022 - FINAL ORDER NO. 75824/2023 - Dated:- 26-6-2023 - HON BLE SHRI P. K. CHOUDHARY , MEMBER ( JUDICIAL ) And HON BLE SHRI K. AN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Services tax indirect tax regime in India. The appellant had filed a refund application under section 11B of the central Excise Act, 1944 read with section 142(9)(b) of the Central Goods and Services Tax Act, 2017 for refund of Cenvat credit of Sugar cess as availed by the Appellant in its revised ER 1 return for the month of June 2017 vide its application dated 17.03.2018 and submitted on 21.03.2018 before the office of the Ld. Assistant Commissioner, CGST CX, Taratalla II Division, Kolkata South CGST CX Commissionerate. The said refund application was scrutinized by the department and a Show Cause Notice (SCN) C. No. V(18)27/Refund/Diamond/Tara-II/Kol-South/2018/759 dated 01.05.2018 was issued wherein the Appellant was asked to sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above mentioned case. Thus, we are satisfied that the present appeal can very well be heard and disposed by this Tribunal and thus we proceed to pass the order on merits. 5. We find that the only issue to be decided in the present proceedings is whether the ld. Appellate authority was correct in rejecting the refund application of the appellant by holding that the earlier order of this Tribunal vide Final Order No. 76353/2019 dated 07.08.2019 has been appealed against by the department and hence the same has not attained finality. 6. We find that the appellant has produced records before us to show that the appeal filed by the revenue against the Tribunal s order dated 07.08.2019 is pending before the Hon ble High Court at Calcutta i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he matter conversant officer dealing with the case be also deputed to help expedite the aforesaid action) 2. In terms of the present practice in the Supreme Court Registry, the SLPs/Stay Applications filed in the Supreme Court are listed for hearing in their own turn according to the dates of their filing. However, in case of urgency, there is a procedure of mentioning before the bench headed by the Chief Justice of India for ad interim stay till the stay application is heard and disposed of by the Supreme Court. For this purpose, the Central Agency Section is requested to file an application with the Registrar of the Supreme Court giving reasons justifying out of turn hearing of the stay application. In case the Registrar is satisfied abou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a copy of the application filed and the order of the High Court should be immediately faxed to the Board, so that even this could be produced to Supreme Court Registry, while seeking out of turn/urgent hearing for stay. 2. Where no time limit is stipulated by the High Court for implementing its order, but the petitioner files a contempt petition/notice in the High Court, the same should be immediately faxed to the Board, for similar action as mentioned in (i) above for pressing for urgent hearing of our stay. It would be possible for the Board's office to file SLP/Stay Petition with relevant documents showing justification for urgency petition before the Registrar of the Supreme Court (for inclusion of department's applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission/clearance from the Board. However, in the matters concerning Supreme Court, the jurisdictional Commissioners should continue to pursue with the Board for early disposal of stay application. 3. Board's Circular bearing No.572/9/2001-CX dated 22.02.2001 stands modified to the above extent. Thus, having regard to the Board Circulars as above, we are of the view that the Appellants are entitled to the refund of sugar cess and that there is no basis to deny the said refund at the present moment by the department. Also, Instruction F. No. 201/01/2014-CX.6, dated 26-6-2014 issued by the CBIC as regards Instructions regarding need to follow Judicial discipline in However the binding adjudication proceedings wherein ..... X X X X Extracts X X X X X X X X Extracts X X X X
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