2018 (9) TMI 1496

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.... and located in the State of Jammu & Kashmir. The appellant was availing the credit on inputs, inputs services etc. in due course of business. During the period 16.6.1997 to 03.09.1997, the appellant availed Cenvat credit of CVD of Rs. 36,57,968/- on seven bills of entry. When on 25.02.2005, the Superintendent intimated that the appellant has taken credit wrongly and advised to pay the said amount. Immediately, the appellant debited an amount of Rs. 7,35,368/- under protest through Cenvat Credit Account with the remarks that "we reserve our right to contest the same if required". In continuation of their letter dt.26.2.2005, on 2.4.2005, the appellant debited another amount of Rs. 4,90,678/- through Cenvat Credit account and further, on 30.....

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....udicating authority vide order dt.29.6.2012 held that the interest payable appellant is Rs. 23,33,133/- and the refund of the said amount was rejected. Against total demand of interest of Rs. 55,45,175/- and refunded an amount of Rs. 33,12,042/-. The said order was challenged by the appellant before the Hon'ble High Court of Jammu & Kashmir in Writ Petition No.411/2015. The Hon'ble High Court held that as the appellant was having alternative remedy for filing the appeal before the appellate authority Tribunal and disposed of writ petition with liberty to file appeal before the Commissioner (Appeals) within 30 days from the date of order passed by the Hon'ble High Court on 31.3.2016. The appellant filed the appeal before the Commissioner (Ap....

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....n the refund claim. 4. On the other hand, Ld. AR opposed the contention of Ld. Counsel submits that the appellant has availed wrongful credit and the same was detected by the team of CAG (Audit). He submits that an amount of Rs. 18,28,984/- was debited by the appellant voluntarily from Cenvat Account and Rs. 18,28,984/- was adjusted against the refund claim of the appellants. The appellant neither protested debiting of the amount nor filed any claim against the deductions made by the Department. Therefore, the said amount was deducted by the department but the appellant never challenged this and hence the same have attained finality. He further submits that the above amount of Rs. 18,28,984/- was deducted on different occasions, therefor....

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....for refund of amount of Rs. 36,57,968/-, therefore, the amount of Rs. 36,57,968/- is not subject matter for consideration by this Tribunal at this stage. If the appellant desires to take the refund of such amount, the appellant is required first to file refund claim before the adjudicating authority for the amount paid under protest or adjusted under protest which the appellant has not done and till date, the said protest has not been adjudicated by the adjudicating authority by issuance of show cause notice. Therefore, the refund claim of Rs. 36,57,968/- cannot be entertained by this Tribunal at this stage. 7. With regard to the deduction of interest of Rs. 23,33,133/-, I find that when the principal amount has been paid under protes....