TaxTMI 
TaxTMI 
2010 (6) TMI 693
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....sioner, Bilaspur and allowed the refund claim of the respondent. 2. The respondents are engaged in the manufacture of sponge iron classifiable under Section 72 of the Central Excise Tariff Act, 1985. In the course of inspection conducted on 30-3-2005 at the premises of the respondents, it was revealed to the department that respondents had wrongly availed the Cenvat credit to the tune of Rs. 26,28,957/-. Pursuant to the directions issued by the department for debiting the said amount, the respondents debited the said amount under protest. The respondents thereafter filed the application for refund claim under Section 11B of the Central Excise Act, 1944 for refund of Rs. 26,28,957/-. Pursuant to the said application, a show cause notice c....
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....from time to time. (iv) After careful study of the records and verification of inputs, capital goods manufactured at site and the process of manufacturing of capital goods at site upto the month of December, 2004, the Central Excise Range Raigarh has directed them to debit amounting to Rs. 1,91,953/- and Education Cess of Rs. 2,561/- vide letter No. Misc./BS SPONGE-RGH/2004/434 dated 21-2-2005. (v) Meanwhile, the Officers of DGCEI Regional Unit, Raipur paid a visit to the plant premises of the party on 30-3-2005 and without any authority of law, or any confirmed demand under Section 11A of the Central Excise Act, 1944 suo motu directed them to debit an amount of Rs. 26,28,957/-. (vi) ....
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...." 4. Being aggrieved, the respondents carried the matter in appeal before the Commissioner (Appeals), which came to be allowed in the impugned order dated 23-12-05. While allowing the appeal the Commissioner (Appeals) stated thus : "M/s. B.S. Sponge (P) Ltd., Gram Taraimal, Post Gerwani, Raigarh have filed this appeal which is directed against the order-in-original No. 28/Ref/2005, dated 20-9-2005 passed by the Assistant Commissioner, Central Excise Division, Bilaspur. 2. The appellant are manufacturers of sponge iron. They filed a refund claim for an amount of Rs. 26,28,957/-, which was deposited by them under protest consequent upon the visit of officers of DGCEI, Raipur. They stated that no duty is payable by them on merit. In f....
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....to be issued, the lower authority had rightly rejected the claim as pre-mature and, therefore, Commissioner (Appeals) ought not have ordered refund of the amount. He further submitted that investigations in relation to wrongful availment of the credit by the respondent were still pending at the relevant time and therefore, the Commissioner (Appeals) could not have granted the refund. He sought to rely upon the decision of the Tribunal in the case of Pearl Polymers Ltd. v. CCE, Raigad reported in 2004 (174) E.L.T. 41 (Tri-Del)." 6. On the other hand, learned advocate submitted that at the relevant time, no adjudication proceedings in relation to alleged wrongful availment of Cenvat credit was pending and not even a show cause notice was i....
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....ice nor any confirmation of wrongful availment of Cenvat credit by the respondents made under any order and as such there was no justification for rejection of the refund claim. Viewed from this angle, we do not find any irregularity in the impugned order. 8. It was sought to be argued that the authorities have issued show cause notice in relation to alleged wrongful availment of Cenvat credit on 7-2-06. As already stated above, contemporaneous records vis-a-vis the order passed by the adjudicating authority as well as by the Commissioner (Appeals) do not disclose any pendency of any such investigation proceedings. To the specific query to the learned DR as to what sort of investigation was carried out subsequent to 30-3-2005, attention ....
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....closes that there was absolutely no investigation as such pending during the relevant period. 10. It is to be noted that in a case of suppression of facts, certainly the Department is entitled to invoke the extended period of limitation for recovery of the amount; that, however does not mean that the assessee who claims to have not committed any default in payment of amount or in availing the Cenvat credit can be compelled to pay the amount and can be restrained from utilising such amount indefinitely, nor in such a case, if the assessee approaches the department with the application for refund of the same, it can be just rejected on the ground that the department would like to initiate necessary proceedings at its sweet will. Powers whi....