9911796707
TMI Blog2023 (10) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... tomers without payment of duty. 2. Audit of the appellant was conducted and it was found that the appellants were not maintaining separate accounts in respect of inputs used in manufacture of finished goods (PCBAs) as per CENVAT Credit Rules, 2004. On pointing by the Audit they have reversed an amount of Rs. 4,08,748/- (Rupees Four Lakhs Eight Thousand Seven Hundred and Forty Eight only) being 6% of the exempted goods in terms of Rule 6(3)(i) of Cenvat Credit Rules, 2004, before the issue of the show-cause notice. Further, the Audit found that the appellant had also availed cenvat credit of service tax of Rs. 2,81,659/- (Rupees Two Lakhs Eighty One Thousand Six Hundred and Fifty Nine only) on bills dated July 2014 and August 2014 (Rs. 1,26 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7th March 2012 and imposed 50% penalty. 5. Aggrieved by the above order, appellant filed an appeal before Hon'ble CESTAT. The Tribunal vide Final Order No. 20121/2019 dated 28.01.2019 held that out of the demand of Rs. 4,08,748/- (Rupees Four Lakhs Eight Thousand Seven Hundred and Forty Eight only) an amount of Rs.2,58,144/- (Rupees Two Lakhs Fifty Eight Thousand One Hundred and Forty Four only) was hit by limitation and demand of Rs.1,50,604/- (Rupees One Lakh Fifty Thousand Six Hundred and Four only) was upheld. As regards availment of cenvat credit the Tribunal held that credit of Rs. 1,26,693/- (Rupees One Lakh Twenty Six Thousand Six Hundred and Ninety Three only) is eligible and Rs.1,54,966/- (Rupees One Lakh Fifty Four Thousand Nine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice, the payment made amounts to payment made under protest and separate letter registering protest is not necessary. The appellant further submits that in the adjudication of the show-cause notice the adjudicating authority has mentioned that in reply to the show-cause notice the ground of limitation was taken up. Further the first appellate authority in the first round of litigation has mentioned in the order that the appeal memorandum inter alia contains the issue of limitation raised by the appellant. Hence, in the first round of litigation, issue of limitation has been raised by them and hence, the rejection of refund of Rs. 2,58,144/- (Rupees Two Lakhs Fifty Eight Thousand One Hundred and Forty Four only) on the ground that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Section 11B of the Central Excise Act, 1944 prior to amendment inserted w.e.f 11/05/2007. Hence, it is not applicable in the present case. Appellant further submits that any amount paid during pendency of dispute amounts to pre-deposit under Section 35F of Central Excise Act, 1944 and hence, the refund claim of the appellant is covered by this Circular F. No. 275/37/2K-CX.8A dated 02/01/2002, wherein it is mentioned that refund of pre-deposit does not require a claim under Section 11B of Central Excise Act, 1944 and a simple letter would suffice. The appellant further submits that the Commissioner (Appeals) relied upon subsection 5 of Section 11B explanation B (ec) thereto and upheld the rejection of refund claim on the ground that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court in the case of C.C.E., Delhi v. Maruthi Udyog Ltd. [2007 (214) E.L.T. 173 (P & H)] [2007 (214) E.L.T. A50 (sic)] and held that as the assessee had only made an entry in the records and actually not taken or utilized such credit, the question of payment of any interest would not arise. Therefore, the levy of interest was also set aside. Aggrieved by the said order, the Revenue is in appeal." 9.1. The appellant submits that the Honb'le CESTAT's decision is based on the decision of Hon'ble High Court of Karnataka in the case of Bill Forge, wherein the penalty was dropped at the Tribunal stage and thereafter the Department went in appeal to the Hon'ble High Court, which rejected the appeal. Since the appeal before the High Court is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereafter disputing/contesting the same on grounds of limitation can be construed as payment under protest? b) Whether the Commissioner (Appeals) is right in confirming the order of the adjudicating authority that the refund claim is time barred as it is filed after one year from the order of Hon'ble CESTAT Final Order No. 20121/2019 dated 28.01.2019? c) Whether the adjustment of the penalty amount from the sanctioned refund amount by the adjudicating authority is legally tenable? 14. The appellant avers that the time limit does not apply in their case as the payment of the duty amount through reversal of Cenvat Credit was disputed/ contested from the show-cause stage, hence it was paid under protest, and therefore the time limit unde ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
