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TMI Blog2009 (6) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... the credit cannot be said to have been made without authority - since the basis of the earlier decisions of the Hon’ble Supreme Court cited by the Appellants has been fundamentally altered by the subsequent retrospective amendment of the law, the Appellants cannot be given benefit of those decisions in the present case. – Impugned credit payable by appellant – However, we waive the penalty imposed on them. - Except for setting aside the penalty, the Appeal is otherwise dismissed - EDM-540/2005 - A-346/KOL/2009, - Dated:- 18-6-2009 - S/Shri S.S. Kang, Vice-President and Chittaranjan Satapathy, Member (T) S/Shri B.K. Munshi assisted by A.K. Nandy, Consultants, for the Appellant. Shri B.B. Agarwal, Jt. CDR, for the Respondent. [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le for utilization by an assessee. In the case of Eicher Motors (supra), it was held that Section 37 of the Central Excise Act, 1944 did not empower the authorities to make a rule for lapsing the accrued credit. 3. Shri B.B. Agarwal, learned Jt. C.D.R. appearing for the Department strongly refutes the claim of the Appellants that the lapsed credit can be revived at a later point of time or the same can be utilized. He states that the Finance Act, 1999 amended Section 37(2) of the Central Excise Act, 1944 with retrospective effect from 16-3-95 empowering the Central Government to make rules for lapsing of the credit. Such retrospective amendment was also validated. He points out that subsequent to such retrospective amendment, the Larger ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ics (supra) and Kusum Ingots Alloys (supra) cited by the learned Jt. C.D.R. Hence, we are of the view that as held by the Hon'ble Bombay High Court in the case of Coral Cosmetics (supra), since the basis of the earlier decisions of the Hon'ble Supreme Court cited by the Appellants has been fundamentally altered by the subsequent retrospective amendment of the law, the Appellants cannot be given benefit of those decisions in the present case. Hence, we hold that the entire amount of the impugned credit of Rs. 9,03,791.00 is payable by the Appellants subject to adjustment of Rs. 5.00 lakhs pre-deposited earlier by the Appellants as per the Tribunal Order. As regards the penalty amount of Rs. 9.00 lakhs imposed on the Appellants, taking into ..... X X X X Extracts X X X X X X X X Extracts X X X X
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