JUDGMENT :

Aparesh Kumar Singh, J.

1. Appellant is aggrieved by the order dated 29.05.2017 passed by the Learned Customs, Excise and Service Tax Appellate Tribunal (CESTAT‘ for short), East Zonal Bench, Kolkata in Excise Appeal No. E/355/2012, where under order of the learned Commissioner (Appeals), Central Excise and Service Tax, Ranchi dated 16.04.2012, by which the Commissioner (Appeals) set aside the order of the Assistant Commissioner, has been affirmed. The Assistant Commissioner of Central Excise, Central Excise Division, Bokaro had sanctioned the refund claim and directed the appellant to take credit of the refund amount in their Cenvat Credit Account vide his Order-in-Original No. 04/AC/REFUND/2010 dated 29.09.2010.

2. This appeal has been admitted on the following substantial questions of law:

a. Whether in the facts and circumstances of the case and in law, an application for refund of countervailing duty is maintainable under Section 11B of the Central Excise Act?

b. Whether in the facts and circumstances of the case, the order passed by learned CESTAT is bad in law and on facts?

Case of the Appellant:

The appellant is a Company within the meaning of Companies Act, 1956 engaged in the manufacture of Excisable goods, Opal Glassware and Kitchenware falling under Central Excise Sub-heading No. 7013 2900/7013 3900 respectively. During the course of business, appellant exported 880 dinner sets (124 pieces) valued at Rs. 33,50,160.00 and 1050 dinner sets (26 pieces) valued at Rs. 11,59,725.00 against ARE-1 No. 01/2009-10 dated 10.06.2009 to M/s Kaspian Kalay Giti, Tehran, Iran under General Bond No. 31/MC-Kol/2009-10 dated 22.04.2009. The buyer vide letter dated 04.10.2009 informed the appellant to take back all the containers as they were not able to clear the same from customs and take delivery. On return of the goods on Kolkata Port, goods were cleared on payment of countervailing duty (CVD) amounting to Rs. 4,28,424.00 only as allowed by the Customs authorities vide Bill of Entry No. 518266 dated 19.01.2010.Receipt of the goods in the appellant‘s factory was intimated to the Superintendent of Central Excise, Madhupur. Appellant filed a refund claim of CVD at Kolkata Port before the Jurisdictional assessing authority, stating that they are entitled to take credit of the CVD paid by them on return of the goods under Rule 16 of the Central Excise Rules, 2002 (C.E.R, 2002‘ for short) as they did not claim any export benefit and goods were also cleared under Rule19 of C.E.R, 2002 on execution of bond and without payment of duty. On re-importation of the goods, the appellant had paid CVD and hence, they were entitled for refund of the said amount of CVD. The Adjudicating Authority sanctioned the refund claim and directed the appellant to take credit of the refund amount in their Cenvat Credit vide Order-in-Original dated 29.09.2010. Department filed an appeal before the Commissioner (Appeals)and the appellant also filed its Cross-Objection. The Commissioner (Appeals) vide Order-in-Appeal No. 19/RAN/2012 dated 16.04.2012 set aside the order of the Assistant Commissioner and allowed the appeal of the Department and directed the appellant to pay back the refund amount with appropriate interest. The appellant filed an appeal before the learned CESTAT against the Order-in-Appeal dated 16.04.2012, stating that they have taken the goods back in their factory and taken the benefits of Rule 16 of Cenvat Credit Rules, 2002. So, they are entitled to avail the Cenvat Credit of the said amount. That Rule 3 of Cenvat Credit Rules, 2002 allowed to take Cenvat Credit on the countervailing duty. That the Commissioner (Appeals) erred in holding that the refund sanctioned by the Adjudicating Authority is not sustainable in law. That the findings of the learned Commissioner (Appeals) is based on incorrect appreciation of relevant facts and materials on record. The Commissioner (Appeals) has erred in not considering and disclosing any reason for den