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TMI Blog2025 (3) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... nd of the duty paid in cash in terms of the Notification; the appellants have procured capital goods under EPCG Scheme and have not availed CENVAT credit of the same. Revenue was of the opinion that the appellants should have availed the CENVAT credit on the capital goods thus procured and they should have exhausted the entire credit available before paying in cash and avail refund of the same. Accordingly, Department initiated proceedings for recovery of wrongly availed refund of Rs.1,04,10,673/- Rs.1,43,55,764/- Rs.7,17,20,905/-; for the month of April 2007, July 2007 and April 2007 to January 2008; by issuing Show Cause Notices dated 30.04.2008, 31.07.2008, 28.08.2008 respectively. The Show Cause Notices were adjudicated vide the impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he term "available" mentioned in the Notification No.56/2002 should be construed the mean the CENVAT credit available in the books of account; learned Commissioner ignored the fact that the appellant could not have availed the credit in terms of the policy; such a finding given by the Commissioner run contrary to the provisions of Exim Policy. He relies on Lippy Lisy Pharmaceuticals - 2004 (171) E.L.T. 118 (Tri. - Del.) [affirmed by Hon'ble Supreme Court - 2005 (187) E.L.T. A152 (S.C.)] and submits that provisions of Notification Nos. 30/97-Cus. and 82/92-C.E. should be read harmoniously and supplies against Advance Release Order issued under Para 7.4 of Export-Import Policy should be treated as eligible for exemption from additional duty o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... license and the appellants did not avail CENVAT credit as the supplier of capital goods was entitled for refund of Terminal Excise Duty; in terms of Para 1A of the Notification, the appellants were required to utilize the CENVAT credit available at the end of the month; the appellant did not chose to avail the CENVAT credit even if the credit was available to them with intention to avail excess refund claim. The appellants have not complied with the conditions of the Notification, refund availed by them was not proper and therefore, Show Cause Notices were correctly issued and confirmed. He relies on Dilip Kumar & Co. reported as 2018 (361) ELT 77 (SC). 6. Heard both sides and perused the records of the case. The case of the appellant is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a similar issue in the case of appellants themselves. The appellants, during the period may, July, September, November 2006 and January 2007, imported raw materials and paid additional duty of customs on the same to the extent of Rs. 14,51,695/-; however, they did not avail the Cenvat credit of the duty so paid by them; consequently, the duty required to be paid by them in cash fell short of the CENVAT credit and as such the same was paid by the appellant in cash by debiting the PLA; subsequently, they claimed the refund of the said duty so paid in cash; inasmuch as the refunds have to be availed by self-crediting the same, the Revenue entertained a view that such refunds were in excess and undue; proceedings were initiated by way of issuan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant has claimed excess refund, thus leading to the recovery of the same. 7. It is also in record that the inadvertent mistake committed by the assessee was subsequently rectified as they took the credit of the additional duty. Such credit can be utilised by them for future payments, thus leading to less payments in cash and consequent less refunds. The entire situation is Revenue neutral and it cannot be said that the appellant benefited by not availing the credit and paying the higher amount of duty in cash. In fact, it can be specifically observed that by non-availment of credit was disadvantageous to the appellant as they had to shelve out excess cash from their pockets for payment of the differential duty. 8. We find that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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