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TMI Blog2015 (9) TMI 1378X X X X Extracts X X X X X X X X Extracts X X X X ..... e law laid down by the jurisdictional High Court squarely applies to the case of the appellant and has to be followed. - Decided in favour of assessee. - Appeal No. : E/327/2010 - ORDER No. A/10897 / 2015 - Dated:- 29-6-2015 - Mr. H.K. Thakur, Honble Member (Technical) For the Petitioner : Shri Anand Mishra, Advocate For the Respondent : Shri S.K. Shukla, Authorised Representative ORDER Per : Mr. H.K. Thakur; This appeal has been filed by the appellant with respect to OIA No. KRS/419/VAPI/2009 dated 30.11.2009 issued on 04.12.2009. 2. The issue involved in the appeal is whether or not appellant is entitled to refund of an amount paid by the appellant representing CENVAT credit availed on inputs used in the man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case records. The issue involved in the present appeal is whether appellant is entitled to CENVAT credit taken on inputs destroyed in fire accident when the same amount is recovered from the Insurance Company. Both sides have relied upon certain case laws which are contrary to each other. These judgments are delivered by the Hon'ble High Court of Punjab Haryana in the case of CCE, Chandigarh vs. Aagosh Poly Foam (supra) and Karnataka High Court in the case of CCE, Bangalore vs. Tata Advanced Materials Limited (supra) and the Hon'ble High Court of Gujarat in the case of CCE, Ahmedabad vs. Intas Pharmaceuticals Limited (supra). The case law of CCE, Chandigarh vs. Aagosh Poly Foam is with respect to Rule 57-I of erstwhile Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... destroyed in terms of the insurance policy, the Insurance Company has compensated the assessee. It is not a case of double payment as contended by the department. At any rate, the Excise Department has no say in the instant case as held by the Apex Court. In that view of the matter, the substantial questions of law framed in this appeal are answered in favour of the assessee and against the revenue. Accordingly, the appeal is dismissed. 5.1 Hon'ble Gujarat High Court in the case of CCE, Ahmedabad vs. Intas Pharmaceuticals Limited (supra) in Para-6, reproduced below, observed that there was an amendment to Rule 3 (5C) of the Cenvat Credit Rules, 2004 with effect from 07.09.2007 by which credit is required to be reversed when payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 7th September, 2007, in absence of sub-rule 5(C) to Rule 3, there was any such legislative intent, is a matter to be probed into. 6. The final order passed by Hon'ble Gujarat High Court held that above amendment carried out in Rule 3 of the Cenvat Credit Rules is only prospective and not retrospective. The said observations are made in Para 16 to 20 of the said order and are reproduced below:- 16. If we go through the provisions of the Rules relating to Cenvat, we find that prior to introduction of sub-rule (5C), there was no provision, which provided for reversal of the credit by the excise authorities where it has been lawfully taken by a manufacturer. Therefore, the credit accrued at the moment the raw material or the inpu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the statute sufficient to show the intention of the legislature to affect existing rights, it is deemed to be prospective only. (emphasis supplied) The Amendment Rules do not provide that they are retrospective in operation. Nor do the circumstances warrant such an inference. In fact, the contention of the respondents is not that power to levy fees/charges for use of riverine land was created/vested in the Port Authorities, by virtue of the Amendment Rules and that such power was given to levy fees/charges retrospectively. The contention has been that the power to levy fees/charges existed ever since the Rules came into force on 5-4-1984 and that position was merely clarified by the Amendment Rules in 1992 and 1994. 35. We have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given effect to from a specified date, i.e., September 7, 2007. 20. Such being the position, we hold that sub-rule (5C) of the Rules is effective from September 7, 2007 and for input credited earlier, there is no scope of reversal of the credit if the finished product becomes unfit for human consumption unless any condition has been imposed for remission of duty in terms of Rule 21 of the Central Excise Rules, 2002 making it clear that the credit already taken is to be reversed. In the present appeal also the period of dispute is before 07.09.2007, therefore, the law laid down by the jurisdictional High Court squarely applies to the case of the appellant and has to be followed. 7. Appeal filed by the appellant is allowed with c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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