2022 (3) TMI 101

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....Cenvat Credit on account of service tax paid on outward freight as well as on a missing invoice No.175 dated 12.09.2015. However, after agreeing to the said objections of the audit, the appellant deposited an amount of Rs. 4,72,084/- on 09.07.2018 pertaining to the period 2013-14 to 2017-18. The said sum included the credit taken of Rs. 2,96,197/-, interest of Rs. 1,31,463/- and penalty of Rs. 44,424/-. Later the appellant filed the refund claim for the said amount of Rs. 472084/- on 13.06.2019. However, vide SCN No.88 dated 27.07.2020, it was observed based on the audit report that on being pointed out by Audit Team, party/appellant agreed with the audit objection and deposited the amount. Hence, no occasion of refund arises. Accordingly, ....

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....be sanctioned with the interest that too at the rate of at-least 12% thereof. Appeal is accordingly prayed to be allowed. 4. Per contra, ld. D.R. has mentioned that the appellant had voluntarily made the payment of discharging his duty liability. No sooner did it was pointed out by the Audit team. Hence, the payment, the refund whereof has been claimed, was not the payment under protest but was the voluntary payment. The objections pointed out by the Audit Team were otherwise genuine. Ld. D.R. has laid emphasis upon para 8 of the order under challenge. It is also submitted that the Commissioner (Appeals) in para 10 has rightly held that since the appellant did not dispute the issue at the time of the audit, the Department had no opportunit....

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....torily to be produced. The provision relevant for the purpose is Rule 14 of Central Excise Rules, which deals with recovery of Cenvat Credit wrongly taken or erroneously refunded. The sub-rule (1) of this rule mandates that such Cenvat Credit shall be recovered from the assessee in accordance of provisions of section 11A of the Excise Act or section 73 of the Finance Act. Sub-section (a) of section 11 (A) of the Act which is parimateria to section 73 of Finance Act requires the Central Excise Officer to serve a notice on the per chargeable with the duty which either has not been levied or paid or which has been short levied or short paid, that too, within a specific period from the relevant date. The use of word "shall" is sufficient to hol....

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....e to the notice of the Court. There will be serious ramifications if this practice is allowed to continue unchecked. In the first place, it must be realised that the officers of the Anti-Evasion Wing of the Central Excise Department have to function within the four corners of the law. They are bound by not only the C.E. Act and the Rules made thereunder but all the notifications/circulars/instructions issued from time to time including those issued by the CBEC. There is no scope at all to collect duty and that too without even quantifying the extent of duty evasion. 7. In view of the above settled proposition, the payment made by the appellant at the time of audit, in absence of any SCN for the same, cannot be held to be the payment agains....