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TMI Blog2016 (4) TMI 324X X X X Extracts X X X X X X X X Extracts X X X X ..... e due from three months after the introduction of the provisions for payment of interest in the Act. - Decided in favour of appellant with consequential relief - Excise Appeal No. E/164/2005-EX [DB] - Final Order No. 51051/2016 - Dated:- 22-3-2016 - MR. S.K. MOHANTY, MEMBER (JUDICIAL) AND MR. B.RAVICHANDRAN, MEMBER (TECHNICAL) For the Appellant : Shri.Bimal Jain, Advocate For the Respondent: Shri.S.Namthuk, J.C.D.R. ORDER PER: B.RAVICHANDRAN The present appeal is against order dated 15.10.2004 of Commissioner (Appeals)-I, Jaipur. In the said order, the Commissioner (Appeals) upheld the Original Order dated 24.05.2004 passed by Dy. Commissioner, Biwadi rejecting the claim for refund of ₹ 227.20 Lakhs filed by the appellant. 2. The brief facts of the case are that the appellants were engaged in the manufacture of black and white T.V. Picture Tubes of various sizes falling under tariff Heading 8540.12 of the Schedule to the Central Excise Tariff. They were availing credit of duty paid on various inputs used in the manufacture of these picture tubes. There were about 31 such inputs the credit on which were availed by the appellant under the then Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants appeal. Against the denovo order of Commissioner (Appeals) the appellant filed appeal before the Tribunal. 4. The Tribunal vide their final order dated 19.04.2002 held that appellants are eligible to utilize modvat credit taken on glass shell, electron gun which are inputs for the manufacture of 14 inch picture tubes for discharging the duty on 17 inch and 20 inch picture tubes. The Tribunal further held regarding prayer for refund, that the matter requires recalculation by the adjudicating authority. The Tribunal remanded the matter to the adjudicating authority only for the purpose of recalculation of the amount of credit lapsed, the period concerned and the quantum of refund, if any, due to the appellant in the light of relevant rules. 5. Here it is necessary to record another change in statutory provisions. With effect from 01.03.1997 a new Rule 57 F (17) was introduced which stipulated that any credit on specified duty lying unutilized on the first day of March, 1997 with the manufacture of black and white picture tubes will lapse. 6. In pursuance of Tribunals final order dated 19.4.2002 the appellant filed an application on 03.06.2002 for refund of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication alongwith orders of the High Court dated 17.02.2003 to the Counsel for the appellant. On 12.03.2015 the Tribunal recorded the submission made by Joint C.D.R. on behalf of Revenue that the Hon ble High Court has not passed any order deciding the question of law referred to by the Tribunal. It was submitted that the statement of the case has not been received by the High Court. It was also noted that as per records of the Registry of the Tribunal, the statement of the case has been dispatched to the Registrar of High Court at Jaipur on 01.07.2004. Since as per Commissioner s statement the case has not been received by the High Court, the Registry was directed to send the statement of fact again to Jaipur Bench of the Hon ble Rajasthan High Court. 10. On 28.10.2015 when the case was listed the Tribunal passed an interim order giving the developments in the case so far. It was submitted in the Court that the said reference petition was registered as E.G.C.R. No.9/2004 and the same was listed before the High Court on 02.12.2008. The Honble High Court vide order dated 02.12.2008 granted three weeks time to the Department as a last opportunity to file paper-book and stated tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction was changed many times and the office was relocated many times. 13. The above narration explains long delay in disposal of the appeal and ultimately the verification report called for from the Jurisdictional Commissioner could not be filed to assist the Tribunal. 14. We have heard both sides extensively and perused the appeal records. 15. On merit of the case regarding availability of credit of inputs and eligibility of such credit for discharging duty liability on all the final products, the matter has been settled in favour of the appellant. The Tribunal vide the final order dated 19.04.2002 directed the original authority to examine the claim of the appellant for refund of ₹ 227.20 Lakhs. It is an admitted fact that the said amount has been paid by cash by the appellant during the pendency of adjudication of 4 show cause notices issued to them regarding ineligible utilization of modvat credit. The details have already been narrated earlier in this order. The amount debited in the PLA was immediately taken credit in the RG 23 A Part II Account by the appellant. It is this amount which is now claimed as a refund in view of a favourable order on merit b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16. It was further submitted that though for convenience they maintained 2 registers, the bonafideness of these Registers were never in question. The appellants had all along during the material time had modvat credit balance of more than ₹ 227.20 Lakhs since August, 1995 to February, 1997. 17. We find much force in the above contentions of the appellant. 18. The ld. A.R. on the other hand stated that in Register 1 the balance was nil as on 31.12.1995. It is in this register the re-credit of the impugned amount was entered. As such, he claimed that it cannot be said that the credit amount lapsed as on 01.03.1997, which is as per register 2 can be said to have included the said amount. 19. In this connection, it is to be noted that the existence of bonafideness of the two registers has never been disputed by the Department from the beginning. In fact the Original Authority while deciding the demand notices categorically recorded as below:- It has been further verified that the balance of RG-23 A II since the date of credit till 6.9.96 (the date of PH) has not gone below ₹ 227,20,000/-. This implies that even though the assessee took credit of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional Commissioner now reported that the documents are not available and could not be traced. We note that the relief which was granted by the final order dated 19.04.2002 of the Tribunal regarding refund could not be given effect till date. The direction was only to verify the various factual details as per the records and to sanction the refund, if any, to the appellant. As already noted the findings of the lower authorities in pursuance of these directions are not categorical and are in fact contradictory to the earlier findings by the original and appellate authorities while deciding the demand cases. Considering the submissions in writing made by the appellant as well as the appeal records, we find that the appellant has made out a case for refund of the amount paid by them in cash through PLA debit and taken re-credit immediately during the pendency of first round of adjudication. It is also established that they had all along modvat credit balance much higher than ₹ 227.20 Lakhs, when both the credit registers were taken together as such we find they are eligible for the consequential relief of refund of this amount. The Consultant for the appellant also prayed for ref ..... X X X X Extracts X X X X X X X X Extracts X X X X
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