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TMI Blog2024 (5) TMIX X X X Extracts X X X X X X X X Extracts X X X X ..... ner - order/decision against which remedy of appellant to Commissioner (Appeals) has been provided as per Section 35 of the Central Excise Act or not - HELD THAT:- The view of the Commissioner (Appeals) that this is not an appealable order this is in any way not justifiable in view of the decisions referred to by the learned counsel - reliance placed in the case of Gujarat Ambuja Cement Ltd. [ 2005 (3) TMI 375 - CESTAT, NEW DELHI] has held that ' On hearing both the sides, we accept the contention of the appellants that the communication dated 24-2-2005 is in the nature of an order affecting the rights of the party for the reason that the claim to avail the exemption has been denied and hence the communication is an order and an appeal very much lies before the Commissioner (Appeals). ' Applicability of Section 142(3) 142(6) of the CGST Act, 2017 - HELD THAT:- The refund claim was filed by the appellant prior to the introduction of GST in the country (From 01.07.2017) the order allowing the refund claim by way of CENVAT credit has been passed on 10.08.2017 when there was no CENVAT credit account in existence - the Order-In-Original dated 10.08.2017 should be read in conjunc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istant Commissioner. Central Goods Service Tax. Division Hapur has rightly clarified vide their impugned letter dated. 18.12.2018 'that OIO No.144/Ref/AC/HPR/2-17-18 dated 10.08.2017 was already been passed by the competent authority on dated 10.08.2017 under which refund was sanctioned. Since a speaking order has already been passed in this matter, therefore, this office cannot take any further view on the impugned order. I find that above clarification vide impugned letter is not appealable before the appellate authority as the remedy under Section 35 of the Central Excise Act, 1944, was available to the appellant against the OIO No.144/Ref./AC/HPR/2-17-18 dated 10.08.2017 which was not utilized by the appellant within time. 2.1 The appellant had filed a refund claim of Rs.4,75,973/- in the light of this Tribunal s Final Order No.A/70014/2016-SM dated 06.01.2016. 2.2 The Assistant Commissioner, CGST, Division Hapur allowed the said refund claim vide Order-In-Original No.144/Refund/AC/Hapur/2017-18 allowing the refund claim filed by the appellant by way of credit in their CENVAT credit account. 2.3 The appellant vide various correspondence requested the jurisdictional authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... office on 20.06.2017 in pursuance of this Tribunal s Final Order No. A/70014/2016-SM dated 06.01.2016. While adjudicating he has held as follows:- ORDER I, hereby, sanction the refund claim of Rs. 4,75,973/-(Rupees Four Lacs Seventy Five Thousand Nine Hundred Seventy Three only) to M/s Simbhaoli Sugars Limited, Unit-Brijnathpur, Uttar Pradesh, through their Cenvat credit account. 4.3 From the facts as noted above it is evident that the refund claim was filed by the appellant prior to the introduction of GST in the country (From 01.07.2017) the order allowing the refund claim by way of CENVAT credit has been passed on 10.08.2017 when there was no CENVAT credit account in existence 4.4 To take care of such situation during the transitional period of switching to the new regime of GST, Section 142 (3) 142(6) of the CGST Act, 2017 provides as follows:- (3) Every claim for refund filed by any person before, on or after the appointed day, for refund of any amount of CENVAT credit, duty, tax, interest or any other amount paid under the existing law, shall be disposed of in accordance with the provisions of existing law and any amount eventually accruing to him shall be paid in cash, notwi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 10.08.2017 has responded vide his letter dated 08.12.2018 in the manner as stated above in para 2.4. 4.8 Definitely this letter needs to be read in continuation of the earlier Order-In-Original dated 10.08.2017. The correspondence undertaken by the appellant is only for implementation of the said Order-In-Original. 4.9 The view of the Commissioner (Appeals) that this is not an appealable order this is in any way not justifiable in view of the decisions referred to by the learned counsel. In the case of:- A. Gujarat Ambuja Cement Ltd. (Supra) following was held:- 3 . On hearing both the sides, we accept the contention of the appellants that the communication dated 24-2-2005 is in the nature of an order affecting the rights of the party for the reason that the claim to avail the exemption has been denied and hence the communication is an order and an appeal very much lies before the Commissioner (Appeals). In this view of the matter we remand the case to the Commissioner (Appeals) for fresh decision on the merits of the matter viz. on the claim of the appellants to the benefit of the exemption under Notification No. 67/95-C.E. B. Bhagwati Gases Ltd. tribunal observed as follows:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en taken, on payment of duty at depreciated value, had received a communication from the Department that their request for applying depreciation on capital goods at the rates mentioned in earstwhile Rule 57-S(2) cannot be acceded to as there is no provision to provide depreciation under Cenvat Credit Rules, 2004 and the Appellant accordingly was advised to remove the capital goods only on payment an amounting equal to the Cenvat credit originally taken on the capital goods. M/s. Bhagwati Gases Ltd. filed an appeal to Commissioner (Appeals) against this decision of CCE (Appeals) and their appeal was dismissed by the Commissioner (Appeals) as non-maintainable. The Tribunal in this case held that if on consideration of the facts and circumstances, it is found that the order communicated by the impugned letter is such as to affect the rights of the party, the appeal would be maintainable; as the law does not countenance a situation where the person is rendered remediless and that in circumstances of the case, the only option available to the appellant was to approach the Commissioner (Appeals) and Commissioner (Appeals) was obliged to decide the matter on merits. The Tribunal set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X
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