2023 (7) TMI 254 - AT - Central Excise

Recovery of CENVAT Credit - credit availed lying unutilized - retrospective amendment of Notification 33/99-CE dated 08/07/99 through section 153 of the Finance Act 2003 - HELD THAT - The demands in these cases have arisen due to retrospective amendment of Notification 33/99-CE dated 08/07/99 through section 153 of the Finance Act 2003 - The amendment envisaged that CENVAT Credit availed shall be payable retrospectively within a period of 30 days from the day the Finance Bill received the assent of the president and in the event of non payment of duty, 15% interest shall be payable from the date immediately after the expiry of the period of 30 days. The Appellants stated that the retrospective amendment only validates recovery of CENVAT Credit availed between 08/07/199 to 22/12/2002. The demands in these three cases have gone beyond 22/12/2002 and sought recovery of CENVAT Credit lying unutilzed as on 28/02/2003. They cited the decision of the Tribunal Kolkata in the case of M/S HUNWAL TEA ESTATE VERSUS COMMISSIONER OF CENTRAL EXCISE, DIBRUGARH 2018 (7) TMI 1356 - CESTAT KOLKATA where under the same facts and circumstances, the Tribunal Kolkata has set aside the demand and allowed their appeal - the decision of the Tribunal in the case of Hunwal Tea Estate is squarely applicable in this case. The retrospective amendment has validated recovery of Cenvat credit availed for the period from 08/07/99 to 22/12/2002 only. Whereas, the demand in these cases have gone beyond 22/12/2002 and demanded recovery of CENVAT credit availed upto 28/02/2003. The the demands in the impugned orders are not sustainable and liable to be set aside - Appeal allowed.

Summary

Issues:
The issues involved in the judgment are the demand for erroneous refund due to retrospective amendment of Notification No.33/99-CE dated 08.07.1999 and the applicability of the said amendment on CENVAT credit availed by the appellants.

M/s. Bhawani Tea Industries, Dibrugarh (Appellant 1):
The appellant was entitled to the benefit under Notification No. 33/99-CE and was allowed a refund. However, a demand for erroneous refund was made by the jurisdictional Assistant Commissioner due to a retrospective amendment brought by the Finance Act, 2003. The Tribunal remanded the matter for fresh decision, and in the denovo adjudication, the demand was confirmed. The appellants contended that the demand exceeded the scope of the retrospective amendment and cited a previous Tribunal decision. The Tribunal held that the demands were not sustainable as they went beyond the period validated by the retrospective amendment, setting aside the impugned orders and allowing the appeal.

M/s Bhagjan Tea Estate, Digboi (Appellant 2) and Guna Tea Industries, Arunachal Pradesh (Appellant 3):
Both appellants had taken refunds under Notification 33/99-CE, and recovery actions were initiated against them for erroneous refunds. The demands were confirmed by the Commissioner(Appeals). The appellants argued that the demands exceeded the scope of the retrospective amendment and were violative of certain legal provisions. The Tribunal, considering the appellants' submissions and previous decisions, held that the demands were not sustainable as they went beyond the validated period by the retrospective amendment. The impugned orders were set aside, and the appeals were allowed.

Conclusion:
The Tribunal found that the demands for erroneous refunds made on the appellants exceeded the period validated by the retrospective amendment of Notification 33/99-CE. Citing previous decisions and legal provisions, the Tribunal held that the demands were not sustainable and set aside the impugned orders, allowing the appeals filed by the appellants.