9911796707
TMI Blog2018 (11) TMI 1370X X X X Extracts X X X X X X X X Extracts X X X X ..... payment through Cenvat Credit account is not correct and the respondents are, therefore, not entitled for making payment of demanded amount through Cenvat Credit Account. 3. The issue involved in this case is that the appellant has availed exemption under Notification No.33/99-CE dated 08.07.1999. Consequent upon the retrospective amendment of the said Notification brought about vide Section 153 of the Finance Act, 2003, an amount of Rs. 21,95,078/- was demanded vide Order No.03/Demand/32- 33/99/ACT/03-04 dated 05.06.2003 from the respondents being the excess refund granted to them during the period from May, 2000 to 22.12.2002 by the Appellate Revenue. The Respondent paid the amount by way of debit in their Cenvat Credit account on 09.06. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority to ensure that the calculations are properly made in terms of the retrospectively amended law as upheld by the Hon'ble Guwahati High Cout before confirming the demands. Since the Lower Appellate Authority has passed a blanket order without looking into the factual details of each, we have no option but to set aside the impugned order and remand the matter to the Original Authority for fresh decision. He shall afford a reasonable opportunity of hearing to the appellants in regard to the calculation of the demanded amounts before passing a fresh order. All the 15 appeals are allowed by of remand. The Stay Petitions filed by the appellants also stand disposed off." 4. The Department filed appeal before the Commissioner (Appeals). Agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs since the Cenvat Credit reversed by it for the payment of excess refund was not towards manufacture of any goods not covered under the Notification No.33/1999-CE dated 08.07.1999. It is also submitted that there is no finding as to the fact that the Respondent was manufacturing goods not covered under the Notification. In absence of the same, it cannot be said that the Cenvat Credit was utilized by respondent for manufacture of goods not covered the notification. Thus the Department appeal is void of any merits. In support of their contention, they relied on the Board's Circular No.683/74/2002-CX dated 24.12.2002 and DOF No.334/1/2003-TRU dated 28.02.2003 wherein it has been clarified that the bringing the amendment was to curb utilizat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by the appellants. 8. We have considered the rival submissions and perused the case records. 9. At the outset, we have seen that the issue regarding reversal of cenvat credit after retrospective amendment during the Finance Act, 2003 has been the subject matter of batch of Writ Petition before the Hon'ble High Court of Guwahati. The Hon'ble High Court upheld the retrospective amendment and also held that the petitioners were required to pay back the refund granted to them in excess. Therefore, the excess amount of refund availed by the appellants are required to be recovered by the Department. At this juncture, we have also considered the submissions made by the respondents wherein in a categorical direction, the respondent has stated t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emption under the said notifications; and (ii) the refund allowable under these notifications shall not exceed the amount of duty paid less the amount of the Cenvat credit availed of, in respect of the duty paid on the inputs used in or in relation to the manufacture of goods cleared under the corresponding exemption notification. 16.2 Similarly, notification No.42/2002-CE (NT) dated 23.12.2002 was issued to disallow diversion of the credit taken on inputs used for manufacture of products exempted under the said North East notifications for payment of central excise duty on other products. Such diversion simply implied payment of a greater amount of duty through account-current on the products exempted under the said notifications thereb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for payment of duty on final products cleared under these notifications and refund is restricted to total duty paid less the total credit in respect of the duty paid on inputs. Thus, in the above illustration, refund will be restricted to Rs. 80/-, though the duty paid in cash was Rs. 100/-. Similarly, if any credit taken in respect of inputs used in the manufacture of goods cleared under 32/99-CE and 33/99-CE, was used for payment of duty on other goods not entitled to the benefit under these notifications, such credit is not admissible and amount equal to the credit so utilized has to be demanded from the manufacturers. As the assessee will have to make the payment within 30 days of the enactment of Finance Bill, it is suggested that nec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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