TMI Blog2011 (2) TMI 875X X X X Extracts X X X X X X X X Extracts X X X X ..... iew its earlier order, the lower authority had clearly erred in passing the order of appropriation of the amount and it had clearly exceeded its jurisdiction - Being so, do not find any case for interference in the impugned order passed by the Commissioner (Appeals) setting aside the order passed by the adjudicating authority. - CE/. 542 of 2010 - Final Order No. 346/2011-EX(PB) - Dated:- 18-2-2011 - Hon'ble Shri Justice R.M.S. Khandeparkar, President Hon'ble Shri Rakesh Kumar, Technical Member Appearance: Shri R.K.Verma, Authorized Departmental Representative (DR) for the Revenue and Shri Dilip P., Advocate for the respondents Per Shri Justice R.M.S. Khandeparkar: Heard the appeal in terms of the order passed today in stay application No.553/2010. 2. Heard the DR for the appellant and the learned Advocate for the respondents. 3. This appeal arises from the order dated 30.11.2009 passed by the Commissioner (Appeals), Chandigarh. By the impugned order, the Commissioner (Appeals) has allowed the appeal filed by the respondents in relation to appropriation of the amount of Rs.13,13,990/- and has set aside the order in that regard which was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondents filed the appeal. While allowing the appeal, the lower appellate authority held that the said amount was erroneously refunded and the recovery thereof could be made only by taking recourse to Section 11A. As the said notification which lays a special mechanism for refund and provides a specific method for recovery of such amount, the adjudicating authority could not have adopted the short-cut method in that regard in violation of the provisions of law and therefore, set aside the order of the appropriation of the amount of Rs.13,13,990/-. Aggrieved by the said order, the department has filed the present appeal. 7. While challenging the said order, the DR submitted that since the respondents were availing the benefit of the exemption Notification No.56/2002-CE dated 14.11.2002 (as amended from time to time) it was mandatory for them to avail and to utilize the cenvat credit for payment of duty in the relevant month. The respondents were required to avail and utilize 50% of cenvat credit of duty in respect of capital goods received in the factory premises during the month of April 2006. However, the respondent failed to avail the same. Drawing our attention to clause 1A , ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anufacturer availing the benefit under the said notification has to comply with the condition of the said notification. In case there is failure in that regard, certainly the department is entitled to take appropriate steps in accordance with the provisions of law. 10. The adjudicating authority while dealing with the refund claim in terms of the provisions of said notification ordered appropriation of the amount ordered to be refunded under the earlier order of the adjudication in relation to the earlier months. In this regard, as rightly pointed out by the DR and not disputed by the learned Advocate, the provision under the clause 2 of the notification is of vital importance. The same reads as under: 2. The exemption contained in this notification shall be given effect to in the following manner, namely :- (a) The manufacturer shall submit a statement of the duty paid, other than the amount of duty paid by utilization of CENVAT credit under the CENVAT Credit Rules, 2002, to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise, as the case may be, by the 7th day of the next month in which the duty has been paid. (b) The Assistant Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der subject to adjustment to be made during the finalization of the decision, while deciding the claim of the subsequent month. 12. While it is the contention of the DR that the decision on provisional basis would mean that the order need not necessarily state that it is provisionally passed but if within the reasonable period the adjustment is made, it would disclose that the earlier refund was provisional one. And that is what has been done in the case in hand. On the other hand, it is the contention of the Advocate for the respondents that the notification specifically provides that the step to be taken by the authority in case he finds it difficult to take final decision about the refund claim by the manufacturer, the authority is empowered to take provisionally. It is only provisional decision to adjust the subsequent claim. Otherwise, according to the Advocate, it would mean review of order passed in the earlier month, without having such power being available to the authority. 13. As already pointed out above, clause 2 ( c) of the notification clearly provides that the circumstances under which the provisional decision regarding refund can be taken. It specifically p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 30.6.06 and further ordered appropriation of the amount which was ordered to be refunded. It was a clear case of review its earlier order. There is no such review power, available to the said authority. Besides, the clause 2( c) as already pointed out above, specifically empowers adjustment only in case of the provisional order of refund and not otherwise. 15. It should not be forgotten that the notification in question provides specific scheme incorporating the conditions to be complied with by the beneficiary and at the same time, requires the authority to act in accordance with the procedure prescribed under the Notification. Being so, while taking resort to the exercise of the power under the notification, the authority would be obliged to be within the parameters of its power prescribed under the said notification. Since clause 2( c) specifically provides for refund on provisional basis and only in those cases empowers adjustment of such refund during the subsequent month. In the absence of provisional order on 30.6.06 and in the absence of power to review its earlier order, the lower authority had clearly erred in passing the order of appropriation of the amount and i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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