Order Date: 31 August 2022

Facts-

• The Appellant, Corporate Ispat Alloys Limited is engaged in the manufacture of Ferro Alloys which have been cleared by way exports. The assessee has claimed refund of accumulated credit under Rule 5 of the Credit Rules for exports made during the period from July 2012 to September 2012, which has been disputed by the lower authorities.
• A Show Cause Notice was issued wherein several discrepancies were pointed out. The said Notice was adjudicated vide Order wherein it has been inter-alia observed that the refund claim which was filed by the assessee was barred by limitation of time and that the assessee is not entitled to the refund of Cenvat Credit under Rule 5 of the Credit Rules for the reason that the assessee has claimed drawback in terms of Customs and Central Excise Duties and Service tax Drawback Rules, 1995. In appeal, the Ld. Commissioner (Appeals) upheld the original Order vide Order-in-Appeal.
• The Revenue reiterated the findings made by the Ld. Commissioner and prayed that the appeal be rejected being devoid of any merit.
• Being aggrieved the appellant has filed the present appeal.

Issue-

• Whether the appellant is entitled for the refund of Cenvat Credit under Rule 5 of the Credit Rules?

Order-

• The Tribunal observed that the Ld. Commissioner (Appeals) in the impugned order has not examined the aspect of time bar. He has rejected the appeal only on the ground that since the Appellant has already claimed the benefit of drawback, the refund of Cenvat Credit under Rule 5 is not admissible. No observation has been made with regard to other issues which were the subject matter of dispute in the first appeal.
• The Tribunal further observed that the issue with regard to the admissibility of refund, in case where drawback of only customs portion have been availed by the assessee, has already been decided in favor of assessee by the Tribunal in the case of Cholayil Pvt. Ltd. (supra) and Sabharwals Medicals (supra) as relied by the Ld. Advocate and the issue is no longer res integra. In view thereof, there is no reason to deny the refund when the Appellant has availed the drawback of only the customs duty portion and not of excise duty which facts are not in dispute.
• Insofar as the aspect of time bar is concerned, tribunal observed that since no observation has been made by the Ld. Commissioner (Appeals), it would be fit to remand the matter to the Ld. Commissioner (Appeals) 
• The Appellant would be granted adequate opportunity of being heard keeping in view the principles of natural justice.
• Hence the appeal is allowed by way of remand.