9911796707
TMI Blog2006 (4) TMI 427X X X X Extracts X X X X X X X X Extracts X X X X ..... ith effect from 1-3-2003. Subsequently, relying upon the board s circular, the appellants were directed to reverse the amount of credit on the LDO lying in stock as on 28-2-2003. The appellants reversed the same under protest . The said circular of the board was challenged in writ petition before the Karnataka High Court which struck down the same and the said judgment was upheld by the Hon ble Supreme Court. The appellant on coming to know, that board circular has been struck down, filed a refund claim with the authorities. The adjudicating authority sanctioned the refund claim by way of credit in RG-23A, Part-II maintained by the appellant. The adjudicating authority s order was reviewed and appeal was filed before the Commissioner (Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Division Bench of this Tribunal in somewhat similar identical situation in the case of Orient Paper (supra), wherein the Hon ble Tribunal at Para 6 held as under :- 6. The Assistant Collector had turned down their refund claim on the basis of Para 9(b) of the Appendix to the relevant Notification. This provision is applicable when the procedure under the said Notification is availed normally and permitted to be availed. Here the respondents made a valid claim for availing the benefit thereunder. It was not allowed. Show cause notices were issued and the credits taken on the RG-23 Account were also disallowed by the Superintendent. Subsequently, after the High Court Order directing the completion of the Adjudication Proceeding initia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation in both the cases and the ratio of the said decision is equally applicable to the present case. Once the credit has not been permitted to be utilised by the assessee when it was admissible and the mistake of the Department is clearly seen in the light of the permission subsequently granted, the change of law cannot come in the way of their getting the benefit. The right to the benefit had already accrued to them when the Notification was in force. When the availment of Credit was thwarted by the action of the authorities and the respondents had to pay the duty from their Personal Ledger Account instead of from their RG-23 Part-II Account and later on the benefit is held to be admissible, their claiming refund has to be allowed by prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e payment of duty is possible and not in cases where such availment is rendered impossible of fulfilment by the action of the Department where the remedy under Section 11B(2) provisio (c) will provide the relief to the manufacturer. 6. From the interpretation given by the Division Bench of the Tribunal, I find that the ratio squarely covers the issue in this case, as the appellants were first directed to reverse the amount based on board s circular which was struck down. 7. In view of the fact and circumstances mentioned above, following the Division Bench decision in the case of Orient Paper, I set aside the Order-in-Appeal and allow the appeal of the appellant with consequential relief, if any, to the appellant. (Dictated pronoun ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
