2018 (10) TMI 764 – CESTAT CHENNAI – TMI – Refund of CENVAT Credit – section 11B of the Central Excise Act, 1944 – rejected for the reason that they have taken CENVAT credit of the amount which has been collected by Canara Bank – appellants have not produced necessary documents to show that the Canara Bank has collected service tax – Held that:- Appellants have replied to the SCN along with necessary documents to support that they have not taken any CENVAT credit and they have borne the tax incidence. However, it is borne out from the records that the authorities below have not considered these documents – the matter requires to be remanded to the adjudicating authority for considering the documents that are produced by the appellants for establishing their case – appeal allowed by way of remand. – ST/41144/2018 – 42522/2018 – Dated:- 4-10-2018 – Ms. Sulekha Beevi C.S., Member (Judicial) For the Appellant : Shri G. Shivakumar, Consultant For the Respondent : Shri L. Nandakumar, AC (AR
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id to Canara Bank. After due process of law, the original authority rejected the refund claim which was upheld by the Commissioner (Appeals). Hence this appeal. 2. On behalf of the appellant, Shri G. Shivakumar, Consultant appeared and argued the matter. He submitted that the only ground raised in the show cause notice is that the appellants have availed CENVAT credit of service tax which was paid by them to Canara Bank. In fact, Canara Bank had collected the service tax by mistake and therefore the appellant being a service provider cannot take CENVAT credit of the said amount. They have not taken any CENVAT credit on the said service tax amount which was collectedly wrongly by Canara Bank. He submitted that they had furnished necessary proof before the adjudicating authority to establish that the appellant has not passed the burden of tax to any other person. He adverted to sub-section (1) of Section 11B and submitted that any person who is eligible to get the excess paid tax can pre
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a letter dated 17.2.2017 informing the appellant that the refund claim has to be rejected for the reason that they have taken CENVAT credit of the amount which has been collected by Canara Bank. The said letter is stated to be a show cause notice and the appellants have replied to the same along with necessary documents to support that they have not taken any CENVAT credit and they have borne the tax incidence. However, it is borne out from the records that the authorities below have not considered these documents. From the submissions made by both sides, I am of the view that the matter requires to be remanded to the adjudicating authority for considering the documents that are produced by the appellants for establishing their case. The impugned order is set aside and the appeal is allowed by way of remand and the adjudicating authority shall grant a further chance to the appellant to produce necessary documents and also for personal hearing. (Dictated and pronounced in open court)
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