2018 (11) TMI 349

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....d products falling under Chapter Heading 8421 3990 of Central Excise Tariff Act and are availing cenvat credit on inputs and input services. 1.2. The appellant has filed a refund claim of Rs. 8,28,292/- (Rupees Eight Lakhs Twenty Eight Thousand Two Hundred and Ninety Two only) on 21.02.2017 on the grounds that they had wrongly paid the said amount of Rs. 8,28,292/- (Rupees Eight Lakhs Twenty Eight Thousand Two Hundred and Ninety Two only) (Rs.5,85,348/- (Rupees Five Lakhs Eighty Five Thousand Three Hundred and Forty Eight only) ST, interest of Rs. 1,55,142/- (Rupees One Lakh Fifty Five Thousand One Hundred and Forty Two only) and penalty of Rs. 87,802/- (Rupees Eighty Seven Thousand Eight Hundred and Two only) vide challan No. 97 dated 19.....

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.... interest of Rs. 1,55,142/- (Rupees One Lakh Fifty Five Thousand One Hundred and Forty Two only) and penalty of Rs. 87,802/- (Rupees Eighty Seven Thousand Eight Hundred and Two only) vide challan No. 97 dated 19.09.2016. The appellant informed the Department vide their letter dated 26.09.2016 that they agree with the Department's audit objection and have paid the irregular credit with interest and penalty and no show-cause notice may be issued to them. 1.4. Thereafter the appellant filed a refund claim and thereafter a show-cause notice was issued proposing to reject the refund claim amounting to Rs. 8,28,292/- (Rupees Eight Lakhs Twenty Eight Thousand Two Hundred and Ninety Two only) filed under the provisions of Section 11B of the Centra....

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.... input service credit was denied to the appellant solely on the ground that the Unit-2 is not registered with the Department which is contrary to the fact. He further submitted that the appellate authority relying upon the decision of the Hon'ble Supreme Court in the case of Collector of Central Excise Vs. M/s. Flock (India) Pvt. Ltd. reported in 2000 (120) E.L.T. 285 and Priya Blue Industries Ltd. Vs. Commissioner - 2004 (172) E.L.T. 145 (SC) wherein it was held that refund claim contrary to the assessment order not maintainable without order of assessment having been modified in appeal and that the officer considering refund cannot sit in appeal over an assessment made by the competent officer. Learned consultant further submitted that th....

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....e ratio of the decision in the Priya Blue Industries is not applicable in the present case. Learned consultant further relied upon the following decisions: a. CC (NS-lll), JNCH, Nhava Sheva Vs. Physical Research Laboratory - 2017 (357) E.L.T. 475 (Tri.-Mumbai) b. Ruchi Soya Industries Ltd. Vs. CC, Mumbai - 2013 (290) E.L.T. 105 (Tri.-Mumbai) c. Micromax Informatics Ltd. Vs. Union of India - 2016 (335) E.L.T. 446 (Del.) d. Hero Cycles Ltd. Vs. Union of India - 2009 (240) E.L.T. 490 (Bom.) 4. On the other hand the learned AR defended the impugned order and submitted that once the appellant has accepted the audit objections and paid the duty along with interest and penalty and requesting the audit authority not to issue the show-cause....

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....dit availed on rent along with interest and penalty but later on realizing that he is entitled to claim the cenvat credit on rent paid for Unit-2 which is exclusively doing job-work for Unit-1 and is also registered under the Central Excise Act, they filed the refund claim which was in time but the same was rejected only on the ground that the assessment of the audit officer was not challenged and unless the appellant challenges the assessment of the audit officer he cannot file the refund claim. This ground which is taken by the Department was on the basis of Priya Blue Industries case and Flock India Pvt. Ltd. case cited supra whereas these two cases are not applicable in the facts of the present case because there was no assessment order....