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TMI Blog2015 (1) TMI 581X X X X Extracts X X X X X X X X Extracts X X X X ..... to get the accumulated money credit in cash. It is reported that against the said decision both the Revenue as well as the manufacturers had approached the Supreme Court and the Supreme Court dismissed both the Special Leave Petitions [2005 (3) TMI 746 - SUPREME COURT]. Therefore, the view taken by the Calcutta High Court [2004 (6) TMI 46 - HIGH COURT AT CALCUTTA] that the manufacturers were entitled to utilize the accumulated money credit has been upheld by the Supreme Court. In view of the above, the action on the parts of the respondents in restraining the petitioners from utilizing the accumulated money credit lying in RG-23B as on 21-7-1996 cannot be sustained and consequently any further order trying to recover the same also deserves to be quashed and set aside. - Respective petitioners are entitled to utilize the accumulated money credit lying in their RG-23B register, accumulated as on 21-7-1996 - Decided in favour of assessee. - Special Civil Application No. 14593 of 2003 with SCA No. 16743 of 2004 - - - Dated:- 11-6-2014 - M.R. Shah and K.J. Thaker, JJ. Shri Paresh M. Dave and Uday Joshi, Advocates, for the Petitioner. Shri Darshan M. Parikh, Jitendra Malkan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacturers like the present petitioner-company started accumulating unutilized money credit in register maintained in form RG 23B. It appears that the Central Government, thereafter, issued a notification dated 25-8-1989 and rescinded the notification allowing money credit namely Notification Nos. 27/87 and 192/87. The Central Excise authorities in case of vanaspati manufacturers including the petitioner-company disallowed use of accumulated money credit for discharging duty liabilities on vegetable/vanaspati products on the ground that the notifications allowing money credit stood rescinded with effect from 25-8-1989. The aforesaid action on the part of the Central Excise authorities was challenged before this Court and this Court decided a group of writ petitions including the petition filed by the present petitioner-company and hold that the money credit was a monetary right earned by the manufacturers on purchasing and utilizing unconventional/minor oils and as manufacturers had changed the manufacturing process and plants hoping to get money credit by way of rebate, and therefore, vested right of utilizing money credit could not be taken away on rescission of the notificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to the Excise authorities by filing monthly returns in the prescribed form. That the Assistant Commissioner of Central Excise informed the petitioner-company and requested to make payment of excise duty through PLA (i.e. in cash) or through Cenvat credit, observing that the judgments referred to by the petitioner-company were not applicable. The petitioner-company, then, made a detailed representation to the Chief Commissioner of Central Excise as well as to the Commissioner of Central Excise in this matter and requested them to permit/allow the petitioner-company to utilize the money credit lying in RG-23B by submitting that the petitioner s vested right to utilize accumulated money credit has been upheld. It appears that, thereafter, the petitioner was informed that his representation had been disposed of, because money credit scheme was not in force as on date and that money credit earned on any inputs could have been used for payment of duty on the final products manufactured out of such inputs only and the scheme of money credit had not been in force after 18-5-1989. 8. Being aggrieved and dissatisfied with the above, the petitioner-company has preferred the present petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very product, there is a decision of the Calcutta High Court against the Revenue. He is also not in a position to dispute that against the said decision SLPs have been dismissed by the Supreme Court. He has not shown any contrary decision to the decision of the Calcutta High Court. He also does not dispute that in earlier round of litigation, this Court held that the manufacturers are entitled to utilize the accumulated money credit and the same cannot be taken away solely on the ground that subsequently the Scheme of money credit is rescinded. He has, therefore, requested to pass appropriate order in these matters. 12. Heard the learned Counsels for the respective parties, at length. At the outset, it is required to be noted that in the earlier round of litigation, this Court has specifically held in favour of the manufacturers and observed that a vested right has accrued in favour of the manufacturers and that the money credit was a monetary right earned by the manufacturers on purchasing and utilizing unconventional/minor oils and for that the manufacturers had changed the manufacturing process and plants hoping to get money credit, and therefore, the aforesaid right cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eding or remedy may be instituted continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the rule, notification or order, as the case may be has not been amended repealed, superseded or rescinded. 12. In view of the aforesaid provisions contained in Section 38A of the Act, I find substance in the contention of Mr. Bajoria that by reason of the omission of the rule, the right of the petitioner no. 1 to have money-credit in terms of the notification under the rule cannot lapse. As pointed out by the Supreme Court in the case of Tungabhadra Industries Limited (Supra), Central Excise Act does not permit divestment of any accrued right of a person acquired by virtue of any of the provisions contained in the Act, rules, notification, order, etc.. Moreover it is rightly pointed out by Mr. Bajoria that even in cases, where by specific enactment a vested right is taken away in violation of the provisions contained in Section 38A of the Act, the Apex Court has unhesitatingly preserved such accrued right. [see the cases of Samtel India Ltd. and Eicher Motors Ltd. (Supra)]. 13. In this case, there is no dispute that the petitioner no.1 had acquired mon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d question is, thus, answered in favour of the petitioner no. 1. 14. It is, therefore, held that the manufacturers were entitled to utilize the accumulated money credit in terms of the notification and the Money Credit Scheme. Further, the learned Single Judge rejected the claim of the manufacturers to get the accumulated money credit in cash. It is reported that against the said decision both the Revenue as well as the manufacturers had approached the Supreme Court and the Supreme Court dismissed both the Special Leave Petitions. Therefore, the view taken by the Calcutta High Court that the manufacturers were entitled to utilize the accumulated money credit has been upheld by the Supreme Court. In view of the above, the action on the parts of the respondents in restraining the petitioners from utilizing the accumulated money credit lying in RG-23B as on 21-7-1996 cannot be sustained and consequently any further order trying to recover the same also deserves to be quashed and set aside. 15. In view of the above and for the reasons stated above both the petitions succeed. It is held that the respective petitioners are entitled to utilize the accumulated money credit lying in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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