9911796707
TMI Blog2024 (7) TMI 1394X X X X Extracts X X X X X X X X Extracts X X X X ..... he amount. The Commissioner (Appeals) in the impugned order has given the liberty to the appellant to avail recredit. The Ld. Counsel has brought to our notice that the appellant has repaid the amount and then availed recredit on 23.03.2014. In such circumstances, appeals have become infructuous. These appeals are dismissed as infructuous. Confirmation of demand of interest - HELD THAT:- The credit availed by the appellant is eligible. Rule 5 provides for an assessee to get refund of the unutilized cenvat credit in case of exports. This is a beneficial provision to facilitate exports. By filing the claim belatedly, the appellant has lost the benefit of refund. The department has not adduced any evidence to establish that there is suppressio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 27.04.2010 sanctioned the entire refund holding that the clearances made to SEZ unit would qualify as export for the purpose of claiming refund under Rule 5 of Cenvat Credit Rules 2004. 5. Against such order, the department filed an appeal before the Commissioner (Appeals) raising the ground that the refund claim is filed beyond time limit of one year prescribed under Section 11B of Central Exercise Act, 1944. The Commissioner (Appeals) vide O-I-A dated 04.10.2013 set aside the Order-in-Original sanctioning the refund and rejected the refund claim on the ground of being time barred. In the said order it was stated that the appellant would be eligible for recredit of the amount of which refund is rejected. 6. Accordingly, the appellant dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that Appeal Nos. E/40035/2016 and E/40204/2016 are consequential to the Appeal No. E/40488/2015. It is submitted that the impugned order in E/40488/2015 is passed without jurisdiction as the Commissioner (Appeals) has acted beyond the scope of his powers while deciding the appeal. It is explained by the Ld. Counsel that in the show cause notice dated 04.11.2009 the only allegation raised was that the refund is not eligible as the clearances made to the SEZ units do not qualify as physical exports. This issue was found in favour of assessee by the refund sanctioning authority who sanctioned the refund. However, the department filed an appeal before Commissioner (Appeals) raising a new ground of time bar. There was no such issue rai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 016 the Ld. Counsel argued on the ground of limitation. It is submitted that this appeal is against the demand of interest on the amount of refund from the date of sanction till repayment by the appellant. The show cause notice for demand of interest has been issued on 23.09.2014 invoking the extended period. There are no grounds for invoking the extended period. The department was well aware that the refund was sanctioned on 27.04.2010. The show cause notice dated 04.11.2009 proposed to deny refund alleging that the clearances made to SEZ does not qualify for physical exports. The refund sanctioning authority after examining the subsequent amendment and precedents has held that clearance to SEZ has to be considered as exports and sanctione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covery of the erroneous refund. The refund claim was time barred and refund was made erroneously to the appellant. Therefore, the protective show cause notice has been issued. The confirmation of demand as per this show cause notice is proper. The appellant has repaid later. 15. In regard to the demand of interest, the Ld. AR submitted that the appellant has received the refund in 2010 and thereafter repaid the amount only after the order passed by Commissioner (Appeals) on 04.10.2013. The appellant is therefore, liable to pay the interest. It is prayed that the appeals may be disposed accordingly. 16. Heard both sides. 17. Appeal No. E/40488/2015 is filed by the appellant against the impugned order which rejected the refund claims. Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
