Yash International Versus CCT, Medchal – GST
Central Excise
2018 (11) TMI 821 – CESTAT HYDERABAD – TMI
CESTAT HYDERABAD – AT
Dated:- 11-10-2018
E/30604/2018 – A/31313/2018
Central Excise
Mr. M.V. RAVINDRAN, MEMBER (JUDICIAL)
Shri Lalit Mohan Chandra, Advocate for the Appellant.
Shri Dass Thavanam, Superintendent/AR for the Respondent.
ORDER
1. This appeal is directed against Order-in-Appeal No. HYD-EXCUS-MDAP2-250-17-18 dated 19.02.2018.
2. The relevant facts that arise for consideration are the appellants are manufacturers of electrical fans; during the year 2007, officers of DGCEI registered an offence case on appellant on the charge of irregular availment of CENVAT credit without receiving the inputs. During the investigation proceedings, appellants were directed to deposit an amount of Rs. 25 lakhs which they have did so. Show cause notice dated 08.09.2008 was issued and was adjudicated by the adjudicating authority and by Order-in-Original No. 34/2009-A
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n amount of Rs. 43,96,019/- paid by them during the proceedings as also after the adjudication order was passed. The lower authorities after issuing show cause notice, restricted the refund claim to an extent of Rs. 18,96,019/- and rejected refund claim of Rs. 25 lakhs. Aggrieved by such adjudication order, an appeal was preferred before the first appellate authority. The first appellate authority in the impugned order has deprecated the findings of the adjudicating authority for two grounds raised for rejection as being technical in nature and held legally unsustainable, however, he agreed with the views of the adjudication authority that the amount of Rs. 25 lakhs for which credit was raised in PLA, was not debited during 2007 and was subsequently debited in 2017, hence refund claim filed on 23.02.2017 is premature, coming to such conclusion he rejected the appeal filed by the appellant.
3. Learned counsel after taking the bench through the relevant papers submits that the first app
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ounts deposited during the investigation has to be refunded merely on submission of a letter. It is his further submission that this proposal is well settled and reliance upon recent decisions of the Tribunal in the case of Parle Agro Pvt Ltd [2018 (360) ELT 1005 (Tri-All)], Tycon Automation Pvt Ltd [2017 (358) ELT 1058 (Tri-All)] and Usha International [2017 (357) ELT 532 (Tri-Mumbai)].
4. Learned departmental representative submits that current account/PLA which is maintained by the appellant was credited by an amount of Rs. 25 lakhs when they deposited the amount during the investigation of the records but they never debited the amount in order to show the receipt of the amount in the Government Treasury. It is his submission that till the refund claim was rejected by the adjudicating authority i.e., on April, 2017, appellant had not debited the PLA by the amount. It is his submission that on the contrary, appellant had been misguiding the higher judicial forum that they have depos
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amount stands accrued to the national exchequer only when the same is debited in PLA; therefore when the amount is available as credit in their PLA without being debited, the question of refund of the same does not arise. It is also mentioned that it would be a traversy, if the refund is granted for full amount of Rs. 43,96,019/- ignoring the availability of Rs. 25,00,000/- at their disposal as it would fetch double benefit to the appellants as they can utilize the balance of Rs. 25,00,000/- lying in their PLA post sanction of refund. In response to this, in the grounds of appeal the appellants have mentioned that they made a debit entry in the PLA, hence they are entitled for refund of the amount is cash. They enclosed a copy of a folio of PLA for the month of April, 2017 showing debit of Rs. 25,00,000/-”
7. It can be seen from the above reproduced Para, the only reason for rejecting the refund claim is that the appellant has not debited the PLA with the amount of Rs. 25 lakhs an deb
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