9911796707
TMI Blog1994 (10) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... order passed by this Tribunal to the Honourable High Court of Orissa. The questions of law which are sought to be referred to the Honourable High Court are as follows :- (i) Whether the Hon ble CEGAT, ERB are legally correct in allowing the transfer of balance amount of credit of regulatory duty into PLA by by-passing the specific provisions of Rule 56A(3)(vi)(b) which provide that no part of credit should be refunded in cash or by cheque in view of the fact that allowing credit into PLA tantamounts to allowing such refund as in terms of Rule 173G credit can be taken into the account current (PLA) only by cash payment into the Treasury. (ii) Whether the Hon ble CEGAT, ERB are legally correct in ordering transfer of credit of regulatory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c Excise Duty and for subsequent utilisation of the same. Subsequently, under Notification No. 267 of 1979, dated 4-10-1979, the rate of duty on aluminium rod was reduced w.e.f. 4-10-1979 and so also the proforma credit facility on duty paid on aluminium used as raw material and have to be availed of at the time of clearance of finished product was withdrawn vide Notification No. 269/79, dated 4-10-1979. In other words, due reduction of duty on aluminium rod as per Notification No. 267/79, dated 4-10-1979, manufacturers of aluminium rods were debarred from entitlement of the benefit of proforma credit under Rule 56A of the Central Excise Rules, 1944 as per Notification No. 269/79, dated 4-10-1979. 2. In this view of the matter, the repre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent power and especially in view of the decision of the Orissa High Court in the case of Collector of Central Excise Customs, Bhubaneswar v. Golden Hind Shipping Company Private Limited reported in 1993 (68) E.L.T. 739. He, therefore, contended that allowing the Respondent herein to transfer the balance amount of credit to regulatory duty into P.L.A. amounts to bypassing the specific provisions of Rule 56A(3)(iv) (b) which provide that no part of credit should be refunded in cash or by [cheque] in view of the fact that allowing credit into P.L.A. tantamounts to allowing such refunds as in terms of Rule 173G. 4. The Respondents in this case were not represented and, therefore, we proceeded to hear the learned J.D.R. who made the above su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r transfer of credit in question. That permission was not granted to them. 5. The relevant amendment in Rule 56A to deal with the situation arising therefrom was by a corresponding amendment to the above-said Rule which is as followsm :- 56A(3)(vi)(a) : The credit of auxiliary duties of excise allowed in respect of any material or component parts and lying unutilised immediately before the commencement of the Central Excise (Amendment) Rules, 1978 in the account of the manufacturer as a result of discontinuance of the said duties of excise under the Finance (No. 2) Act, 1977 (29 of 1977), may be utilised after such commencement towards payment of duty on any finished excisable goods for the manufacture of which such material or compone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a public authority cannot be estopped from doing its public duty, but I do think it can be estopped from relying on a technicality and this is a technicality . 6. The above-said decision of the Supreme Court was relied on by the Tribunal and the same is applicable to the facts of this case. The reason is that the permission sought by the Respondents was for utilisation of the credit amount in question which was clearly admissible and should have been granted by the Assistant Collector. His failure to give the permission deprived the Respondents of a chance to utilise the credit when it was open to them to do so. As the permission which was thus wrongly withheld was later on granted to them it has to be held that the credits in question w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he goods, the Orissa High Court held that even though the Appellants were entitled for the property and when the department could not return the property, the Tribunal had no inherent power to grant the market value of the property. That decision turned on its own facts. The facts of that decision are not at all applicable to the facts of this case. On the contrary, the decision of the Supreme Court in the case of Mangalore Chemicals and Fertilisers Limited which is extracted by us above, applies to the facts of this case. In such circumstances, when the questions of law referred to above are clearly concluded by the decision of the Supreme Court as well as by the decisions of the Tribunal, the question of again referring the same to the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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