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TMI Blog2011 (1) TMI 684X X X X Extracts X X X X X X X X Extracts X X X X ..... As the board has clarified vide circular dated 26-6-1997 that the reversal on actual basis be considered and on a certificate issued by the cost accountant appointed by the Chief Commissioner under Section 14A of the Central Excise Act, 1944 and the appellants has opted for the same, the issue pending challenging the formula before the Hon’ble High Court does not come into the picture of sanctioning the refund claim of the appellants - Decided in favor of the assessee by way of remand to adjudicating authority - E/3592/2003 - A/31/2011-WZB/C-II(EB) - Dated:- 11-1-2011 - S/Shri Ashok Jindal, P.R. Chandrasekharan, JJ. REPRESENTED BY : S/Shri D.P. Shroff, Sr. Advocate with Vipul Bilve, Advocate, for the Appellant. Shri S.S. Katiy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal Assistant Commissioner that the amount reversed under RG-23A Part-II register was in excess over what was required to be reversed proportionate to the quantum of export. On this basis, they filed a refund claim with the Assistant Commissioner. During the pendency of this claim, the Govt of India announced a scheme called Amnesty Scheme for the benefit of those exporters under DEEC scheme who had not complied with condition-V of the above Notification. This scheme was introduced through a Circular dated 4-1-1997, which required such exporters to reverse the Modvat credit and pay interest thereon @ 20% within 31-1-1997. The Circular laid down that, in the event of such reversal of credit and payment of interest, there would be no penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credit. Later on, however, the CBEC came out with an alternative after having found that some of the exporters encountered difficulty in quantification of the Modvat credit to be reversed in terms of the above formula. This alternative came through Circular No. 318/34/97-CX., dated 26-6-97. It was provided in this circular that, in the first instance, quantification of Modvat credit to be reversed in accordance with the above formula should be got verified by the jurisdictional Assistant Commissioner with reference to records and a certificate of correct reversal of credit should be obtained from an officer of the rank of Assistant Commissioner on the relevant documents. It was also laid down that, where the reversal was not in conformity w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ested the AC to refund to the appellants an amount of Rs. 18,20,003/-. The Assistant Commissioner, however, did not accept the Cost Accountant s report to be correct. He took the position that the report was based on assumptions and presumptions and hence not acceptable to the Department. He, further, insisted that the Modvat credit reversal should be in accordance with the Board s formula prescribed in Circular dated 10-1-97. The appellants had reversed a total amount of over Rs. 39.95/- Lakhs. On the basis of the report of the Cost Accountant appointed by the Chief Commissioner, a show-cause notice was issued and the refund claim was held to be premature in view of the facts that the writ petition challenging the formula is pending befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, refund claim cannot be sanctioned at this stage. Accordingly, there is no infirmity in the impugned order holding that the refund claim is pre-mature. 6. Heard and considered. 7. On careful consideration of the submissions made by the ld. Advocate, we find that the appellants have been consistently taking the position that they are entitled to the Public Notice No. 3/97 dated 28-1-97 issued by the Commissioner of Customs Central Excise, Vadodara wherein exporters like the appellants were permitted to reverse input duty credit on actual basis within the time limit prescribed by the Central Government in circular dated 4-1-1997. The ld. counsel has also brought on record the board circular dated 26-6-1997 which also permitted revers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of principles of natural justice. The Board circular dated 26-6-1997 has clarified that in cases where credit is reversed on actual basis, certificate would be issued only after verification of the records by a cost accountant nominated by the Chief Commissioner under Section 14A of the Central Excise Act, 1944. On the basis of that certificate, the refund claim of the appellants is to be considered. In the impugned order, no observation to that effect has been done by the lower authorities. They merely observe that as the writ petition filed by the appellants challenging the formula given by the board circular as per circular dated 10-1-1997 is pending, the refund claim is premature and is not justified. As the board has clarified vid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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