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TMI Blog2024 (8) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... forwarded the appeal memorandum [EA-2] filed by revenue to the appellant and granted personal hearing. It s not clear whether the Audit note was enclosed along with the appeal memorandum or whether the allegations in the note were substantially a part of the appeal filed. However, it is felt that the appellant cannot demand a copy of the post-audit note which is an internal document of the department. The department is free to use the said note in its entirety or only in part as is felt necessary for framing its appeal. No violation of natural justice is done even if the post-audit note of the department which is a correspondence between one wing of the department and another is not supplied to the appellant. The appellant is only required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - appeal disposed off by way of remand. - SHRI M. AJIT KUMAR, MEMBER (TECHNICAL) Shri S. Durairaj, Advocate for the Appellant Shri M. Selvakumar, AC (AR) for the Respondent ORDER These appeals arise out of a common Order in Appeal No. 134 to 137/2014 dated 13.10.2014 passed by the Commissioner of Central Excise (Appeals), Trichy. 2. Brief facts of the case are that the appellant is a manufacturer and exporters of long-lasting insecticide HDPE mosquito bed nets. Appellants, being an EOU, exported the goods and claimed refund of accumulated CENVAT credit under Rule 5 of CENVAT Credit Rules, 2004 read with notification 27/2012-CE (NT) dated 18.6.2012, by filing the refund application after debiting the refund amount in the CENVAT credit reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded appeal memorandum [EA-2] of the Revenue to them and granted personal hearing. He has not issued any notice to show cause against the proposed order as required under 2nd proviso to Section 35A(3) of the Central Excise Act, 1944. Reliance was placed by him on the decision of the Hon ble Supreme Court in the case of Gujarat Machinery Manufacturers Ltd Vs CCE, Baroda 1996 (9) TMI 121 and also on the decision rendered by the Hon ble High Court of Gujarat in the case of Patel Filters Ltd Vs UOI - 2008 (4) TMI 283. He stated that ineligible CENVAT credit cannot be recovered by way of denying the refund. It should be demanded by issuing a show cause notice by invoking Rule 14 of CENVAT Credit Rules, 2004. He also relied on the decision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tween one wing of the department and another is not supplied to the appellant. The appellant is only required to meet the averments made in the appeal arising from within the issues before the Original Authority. However, if a copy of the audit note is made available to the Commissioner Appeals and is not a part of the appeal memorandum, it must normally be made available to the appellant also, unless the Commissioner Appeals has some valid reasons for not doing so and the reason for which is made clear in the order. 6. It s the appellants contention that a show cause notice against the proposed order was required to be issued to them by the Commissioner Appeals, under 2nd proviso to Section 35A(3) of the Central Excise Act, 1944. The said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d shall state the points for determination, the decision thereon and the reasons for the decision. (4A) The Commissioner (Appeals) shall, where it is possible to do so, hear and decide every appeal within a period of six months from the date on which it is filed. (5) On the disposal of the appeal, the Commissioner (Appeals) shall communicate the order passed by him to the appellant, the adjudicating authority, the Principal Chief Commissioner of Central Excise or Chief Commissioner of Central Excise and the Principal Commissioner of Central Excise or Commissioner of Central Excise. 7. A plain reading of the second proviso to Section 35A(3) of the CEA 1944 shows that if the Commissioner (Appeals) is of opinion that any duty of excise has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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