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TMI Blog2013 (12) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... ng not done so and having allowed the proceeding to arrive at dead end and the Tribunal’s order to attain finality, they are not now entitled to avail the benefit of declaration of law by the Hon’ble Supreme Court subsequent to the conclusion of the proceeding – There is no infirmity in the order - Decided against Revenue. - E/2759/2012 and Cross Objection No. CEO/3719/2012 - Final Order No. 56703/2013-SM(BR)(PB) - Dated:- 24-6-2013 - Ms. Archana Wadhwa, J. Shri R.K. Verma, AR, for the Appellant. Shri Aditya Kumar, Advocate, for the Respondent. ORDER Being aggrieved with the order passed by the Commissioner (Appeals), Revenue has filed the present appeal. I have heard Shri R.K. Verma, ld. D.R. appearing for Revenue and Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... H) and held that if the excess credit availed by the assessee was not utilized by them, no consequence for levy of interest and penalty would follow. By observing so, the Tribunal remanded the matter to the lower authority for examination of the above facts. 5. It is seen that after passing of the order by the Tribunal, the assessee filed refund claim for the refund of an amount of Rs. 1 lakh pre-deposited by them as a condition of hearing of their appeal by the Tribunal. Said refund claim filed by the assessee was taken up for adjudication by the Deputy Commissioner, who vide his order dated 18-2-2011 and after taking note of the fact that the Tribunal decision has been accepted by the authorities granted the refund. Said order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. Proposition of both sides is for limited examination of facts and figures appearing from RG 23A register in respect of exempted goods, as claimed to have been extracted in the chart produced today to explain the case of Assessee. Such proposition is acceptable. It may be stated that if there is no utilization, of Cenvat credit, no consequence of law for levy of interest and penalty may follow following the decision cited (supra) by learned Counsel. In the result, both the appeals and cross objection are disposed of remanding the matter to the learned Adjudicating Authority for examination of the Cenvat credit on the exempted goods whether utilized or not and he shall come to a proper conclusion taking into consideration, the law laid d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 06/DC/MBD/11, dated 18-2-2011. Therefore, the said order of the Hon ble CESTAT attained finality. By reinitiating the remand proceedings again the Assistant Commissioner, Central Excise, Moradabad has not followed the judicial discipline. I observe that in the impugned order, the adjudicating authority has referred to the CBEC Circular No. 942/03/2011-CX., dated 14-3-2011 issued for taking action to safeguard the revenue in the light of the decision of the Apex Court in the case of UOI v. Ind Swift Laboratories Ltd., wherein the decision of the Hon ble High Court of Haryana was set aside. I find that the said Circular was not given the retrospective effect for recovery of the interest, therefore, it was not applicable in the facts and circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o support the same and to decide the matter afresh by following the subsequent decision of the Hon ble Supreme Court especially when the Tribunal s order was not put to challenge. If any side, be it Revenue or the assessee, is allowed to avail the benefit of subsequent declaration of law by the higher courts where proceedings have attained finality and having been not challenged before the higher authority, there would be no end to the litigation and disputes would never be settled. As such, I am of the view that there is no infirmity in the impugned order passed by the Commissioner (Appeals). Revenue s appeal is accordingly rejected. Cross-objection also stands disposed of. (Pronounced in the open Court on 24-6-2013) - - TaxTMI - TMIT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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