9911796707
TMI Blog1995 (9) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... rates as against the concessional rates applicable to small scale manufacturers under Notification No. 175/86-C.E., dated 1-3-1986. The appellants were availing the benefit of Modvat Scheme and their customers also availed of the Modvat credit in respect of the sub-assemblies of television sets cleared by them. The appellants had filed a refund claim for Rs. 5,06,143.18 on the ground that they had paid central excise duty @ 15% Adv. instead of 5% Adv. The Asstt. Collector of Central Excise, New Delhi sanctioned the refund of Rs. 1,88,419.37 partly by cheque and partly by credit in RG 23A Part II. The Collector of Central Excise, New Delhi reviewed the order of the Asstt. Collector of Central Excise, New Delhi, and ordered the appeal to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mall scale exemption under Notification No. I75/86 C.E., dated 1-3-1986, and were required to pay central excise duty at the concessional rate of 5% Adv. on their goods sub-assembly of television sets classifiable under sub-heading No. 8529.00 of the schedule to the Central Excise Tariff Act, 1985. By mistake they paid duty @ 15% Adv.. They were working under Modvat Scheme and availed of credit in respect of the central excise duty paid by their suppliers on the inputs. The goods produced by them were also covered by the Scheme of Modvat, and their customers were eligible for Modvat credit in respect of the duty paid by them on the sub-assembly of television sets. A part of the duty was paid by them through PLA and a part by RG 23A. Their c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the refund afresh in accordance with the provisions of the Act and Rules made thereunder read with instructions, if any, of the Board/Govt. on the issue. The appeal filed by the Department, therefore, succeeds and is accordingly allowed. This order provides no reasoning as how the refund was erroneously granted and what provisions of Law were violated. If the Modvat credit is not debited then obviously the refund claim should have been for a higher amount. No basis has been given in this order in appeal as how the whole of the refund claim could be considered erroneous when the Asstt. Collector of Central Excise had reduced the amount after taking note of the confirmed demand. 7. Under Rule 57E of the Central Excise Rules, 1944 if duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n debited from the accounts of the appellant. To that extent, they themselves have borne the burden of central excise duty. Further, it is seen that the Central Excises and Customs Laws (Amendment) Act, 1991 came into operation on 20-9-1991, making the amended provisions of Section 11B of the Central Excises and Salt Act, 1944 applicable with retrospective effect to all pending applications for refund of duty. In this case, the refund claim had already been disposed of on 6-4-1990 and a cheque for Rs. 97,676.54 had been issued in favour of the appellants on that date. On 20-9-1991, no refund application was pending. The review order by the Collector of Central Excise, New Delhi is dated 21-1-1991, and the order of the Collector of Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent. Again, payment made to the respondent under interim orders of this Court dated 8-10-1982 was only an interim arrangement pending disposal of the appeal against the judgment of the Delhi High Court and was further subject to the stipulations and conditions contained therein. That interim order cannot be treated to be an order of refund in terms of the directions of the High Court. It is, therefore, futile for the respondent to contend that Section 11B(1), (2) and (3) have no application to the present case. We are of the opinion that in the facts and circumstances of the present case, the provisions of Section 11B as amended by Act 40 of 1991 are clearly attracted to the present case because the order of the Division Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X
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