TaxTMI 
TaxTMI 
2021 (12) TMI 672
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.... dated 28 Feb, 2015. Subsequently, when no action was taken by the department the appellant filed a refund claim which was proposed to be rejected by issuing a show cause notice. The said show cause notice was adjudicated vide Order-In-Original dated 17.11.2016 whereby the refund was rejected under Section 11B of the Central Excise Act, 1944. Being aggrieved by the said Order-In-Original appeal filed before the Commissioner (Appeals) was dismissed vide impugned order dated 29.08.2018. Both the lower authorities have rejected the claim. On the ground that since, the appellant have paid the amount the same should be treated as final payment and in terms of Section 11A (2) the case stand closed. Secondly, on the ground that after payment by th....
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....9 (S.C.). * Sunder Steels Ltd.-2005 (181) E.L.T. 154 (S.C.) * Thyssenkrupp Industries Pvt. Lid.-2014 (310) E.L.T. 317 (Tri-mumbai). * Siddhant Chemicals-2014(307) ELT 44(All) * Binjrajka Steel Tubes V/s. CCE, Hyderabad -1 2019(2) TMI 137 - CESTAT HYDERABAD IOCL 2019(2) TMI 563 - CESTAT AHMEDABAD * Jayaswals Neco Ltd. 2007(8) S.T.R. 305(SC) 3. Shri. Dharmendra Kanjani, Learned Superintendent (AR) appearing on behalf of the Revenue reiterates the finding of the impugned order. 4. I have carefully considered the submissions made by both the sides and perused the records. As regard, the issue that whether the appellant's payment of Cenvat Credit is attained finality in terms of Section 11A (2), I find firstly, the appellant have mad....
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....ith reference to the audit objection and payment made by them. Both the lower authorities have contended that appeal ought to have been filed on the basis of the Hon'ble Supreme Court in the case of Priya Blue Industries Ltd. and Flocks India Pvt Ltd. I am of the view that firstly, the payment made by the appellant was not the final payment hence, the same cannot be a part of the assessment. Secondly, there is no assessment by the department which needs to be challenged. As per the audit proceeding as referred above the department was supposed to issue show cause notice which it failed to do so, therefore, there is no occasion and reason for appellant to file appeal before the Commissioner (Appeals). The only remedy is to claim the refund o....