2018 (7) TMI 538

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....A.R.) ORDER Per: Ramesh Nair The brief facts of the case are that the appellant was working as 100% EOU Unit they availed the CENVAT credit, later on the appellant demanding 100 % EOU and converted it into DTA Unit, at that time there was unutilized credit balance of Rs. 43,130,78/- which the appellant could not used because the rate of excise duty liable on the final product was reduced ....

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....l appearing on behalf of the appellant submits that the Commissioner could not have directed the appellant to pay back refund amount for the reason that for the recovery of erroneous refund, the SCN is necessary under Section 11A, without issuing the SCN and adjudication thereof, the recovery of refund already granted is without jurisdiction. In this regard he placed reliance on the following judg....

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....e Commissioner (Appeals) the refund sanctioned by the Original Authority stands reversed, therefore, the same become recoverable. He placed reliance on the judgment of Gujarat State Fertilizers & Chemicals Ltd. Vs. CCE 2017 (352) ELT 308 (guj.) 4. On careful consideration of the submission made by both the sides and perusal of the records, I find that judgment passed by the Hon'ble Gujarat High....

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....or otherwise was not examined by the Ld. Commissioner (Appeals), therefore, in order to the recovery of refund, this aspects has to be examined then only it can be decided that whether by order of Commissioner (Appeals) itself recovery can be made or the entire process of Section 11A such as issuance of SCN, adjudication is required. Therefore, I am of the view that the matter on this aspect shoul....