2019 (8) TMI 75

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....dit in their cenvat credit along with interest. Briefly the facts of the present case are that the respondents are engaged in the manufacture of cut and polished granite slabs, monuments and articles thereof falling under Chapter 25 of Central Excise Tariff Act, 1985. During the audit of records by the departmental officers, it was noticed that they have availed cenvat credit on HSD oil for an amount of Rs. 2,81,06,640/- (Rupees Two Crore Eighty One Lakhs Six Thousand Six Hundred and Forty only) duty paid on HSD oil under protest for the period from August 2009 to June 2011. The Department issued show-cause notice for the period from August 2009 to December 2010 with a total demand of Rs. 2,33,45,568/- (Rupees Two Crore Thirty Three Lakhs F....

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....otest. Thereafter, the Assistant Commissioner vide Order-in-Original dated 05.07.2017 sanctioned the refund by allowing to take credit of Rs. 2,33,45,568/- (Rupees Two Crore Thirty Three Lakhs Forty Five Thousand Five Hundred and Sixty Eight only) in their cenvat account and rejected the refund claim of Rs. 47,29,610/- (Rupees Forty Seven Lakhs Twenty Nine Thousand Six Hundred and Ten only). Aggrieved by the said order, appellant filed the appeal before the Commissioner who allowed the appeal of the assessee. 2. Heard both the parties and perused the records. 3. Learned AR for the Revenue submitted that the order of Commissioner (Appeals) is totally silent on the departmental appeal pending before the Hon'ble High Court against CESTAT....

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....terest would still be payable as per the time limits prescribed in the law or in the order, unless such order is stayed by a competent Appellate Authority. It is important to note that in such cases of consequential refund, besides filing of appeal against the order, it is also necessary that a protective demand of the refunded amount be issued under Section 11A by not lower than Assistant/Deputy Commissioner of Central Excise as per new monetary limits for adjudication of cases by the Central Excise officers and transferred to the call-book." 5. After considering the submissions of both the parties and perusal of the material on record, I find that the Commissioner (Appeals) has given detailed reasons for allowing the refund claim of Rs....

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....n-issuance show-cause notice was not at all considered by the respondent and has not discussed in his order. Further the Hon'ble Tribunal has categorically held that, the appellant as EOU can claim cenvat credit for the duty paid on HSD oil used as fuel and when they are eligible to avail the benefit of the said notification. Further department has not obtained any stay order against the said order. Therefore, I find there is a substantial force in the argument of appellant to allow the refund of Rs. 47,29,610/- (Rupees Forty Seven Lakhs Twenty Nine Thousand Six Hundred and Ten only). I agree with the appellant arguments in this regard and allow the refund of Rs. 47,29,610/- (Rupees Forty Seven Lakhs Twenty Nine Thousand Six Hundred and Ten....