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TMI Blog2017 (12) TMI 427X X X X Extracts X X X X X X X X Extracts X X X X ..... oint of time. Such a course of action has no sanction in law. The restoration/refund of the Modvat Credit under the said Rules is denied - appeal dismissed - decided against appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeals). The ld. Commissioner (Appeals) did not find any merit in the appeal and upheld the adjudication order. Aggrieved from the same, the appellant has filed this appeal. 5. Ld. Advocate refers to Rule 57 F (13) and states that in terms of that rule, the appellant is entitled to restoration/refund of Modvat Credit under the said Rule. He contended that the inputs were used for manufacture of final products which were cleared for export to meet the export obligations. He also relied upon the judgment of Hon'ble Supreme Court in the case of M.V. Elisabeth and Ors. Vs. Harwan Investment and Trading Pvt. Ltd. AIR 1993 SC 1014 and argued that if there was no clause for restoration of credit, the Court should devise a procedure in terms of Para 65 of the said judgment. He also invited the attention to the letter of the Department dt. 22.01.1997 in which the department advised them to reverse the credit along with interest. In view of the relaxation of condition of Notification No. 203/92-Cus by the CBEC, he clarified that in their letter dt. 17.07.2002 they had asked for restoration of the Modvat Credit and refund of interest thereon. He admitted that they have not men ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. There was nothing which prevented the appellant to apply for restoration/refund within the time period prescribed in Section 11B of the Act. However, the same was not done. After having decided that they wanted to get the benefit of said notification to avail the Amnesty Scheme at that time and being fully aware that they had paid the interest after expiry of prescribed deadline, they still kept on pursuing the legal remedy in the Hon'ble High Court and Supreme Court. The legal position from the beginning was very clear that they were not eligible for Amnesty Scheme as they had made the payment of interest beyond the limitation prescribed in the CBEC Circular. Still, they decided not to avail the refund in time and now they are taking the plea that legal proceedings were pending. It is not the averment of appellants that any legal proceedings were pending in so far as the Modvat credit was concerned. The proceedings which they were pursuing in the Court were related to the availment of the notification. Hence, the case laws relied by them are not applicable. There was no bar in the notification to prevent them from applying for refund claim/restoration. If they had opted for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court, the duty was paid from the input credits availed by the assessee. Both the authorities concurrently held that those credits cannot be reversed and there is no provision for reversal of the same. But the Tribunal directed that RG 23A Part II should be ordered to be credited with the debits of duty made in the RG 23A registers and the Department was given liberty to take such action as permissible under law to deny the availment of Modvat claim. Since, in the instant case, the said credit was utilized for payment duty, we do not think it proper to direct the authorities to reverse the entries in RG 23 A registers by giving them liberty to deny the availment of Modvat claim at a later point of time. Such a course of action has no sanction in law. The learned counsel for the assessee also could not show us any provision of law for reversal of entries, as ordered by the Tribunal. 19. In the circumstances, we are of the opinion that the view taken by the Tribunal for reversal of entries in RG 23A registers consequent to the orders of the Court in W.P. No. 22078 of 1997 and batch, dt. 02.02.1998 is not correct. In view of the same, we hold the substantial questions raised in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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