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TMI Blog2018 (12) TMI 777X X X X Extracts X X X X X X X X Extracts X X X X ..... Per Bench : The present appeal is filed against the impugned Order-in-Appeal No. 24/DIB/CE(A)/GHY/15 dated 25.02.2015. In the impugned order, the ld. Commissioner (Appeals) has dismissed the appeal filed by the appellant and also allowed the appeal filed by the Department. 2. The issue involved in this case is that the appellant is availing exemption of Excise duty in terms of Notification No.32/99-CE dated 08.07.99 and claimed refund of Excise duty in cash in respect of final products i.e. Pan Masala (Plain) without tobacco. The appellant had filed the refund claim of ₹ 4,10,84,917/- for the month of November, 2006 under the subject Notification No.32/99-CE dated 08.07.99. The lower adjudicating authority vide Order No.R-67/06-07 dated 20.12.2006 has held that the appellant had not utilized the whole cenvat credit available to them on the last day of the month under consideration before payment of duty from PLA and therefore, deducted the amount of ₹ 23,82,040/- from the said claim. The lower authorities further held that the refund claim of additional Excise duty of ₹ 33,92,749.01 and Education Cess of ₹ 5,74,468.56 were not admissible for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re amount of cenvat credit then available in the concerned months on the quantity of perfume purchased, which resulted into overutilisation of cenvat credit and, consequently short payment of duty. It was further submitted that the appellant in pursuance to the retrospective amendment of Notification No.32/99-CE dated 08.07.99, vide Section 153 of the Finance Act, 2002, reversed the amount of ₹ 3,98,59,581/ through Cenvat Credit Account, which was not available to them. 3.3 Regarding non-utilization of cenvat credit, the appellant is eligible to claim refund in terms of Notification No.32/99-CE dated 08.07.99 as per the Proviso to Para 2 (b) of the said Notification, which reads as under : Provided that in case, where exemption contained in this Notification is not applicable to some of the goods produced by a manufacturer, such refund shall not exceed the amount of duty paid less the amount of cenvat credit availed of, in respect of the duty paid on the inputs used in or in relation to manufacture of goods cleared under this Notification. As per the said Proviso, the appellant could avail the amount of cenvat credit in respect of duty paid on the inputs used in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide the purview of Clause 2 (c) of the Notification on account of the fact that the Refund Sanctioning Authority has sanctioned the refund after due verification of cenvat credit with respect to the inputs consumed in the manufacture of eligible/dutiable Excisable goods covered under Notification No.32/99-CE dated 08.07.99. The Department cannot be permitted to take advantage of the fact that the Refund Sanctioning Authority has sanctioned the Refund Orders as Provisional , when in fact, the same was sanctioned upon scrutiny of the documents. It was also contended by the ld.Advocate that in any case the issue was for short payment of duty that needs to be recovered under the provisions of Section 11A of the Central Excise Act, 1944, which has not been done in this case as held by Hon ble Supreme Court in the case of Union of India Vs. Madhumilan Syntex Pvt. Ltd. : 1988 (35) ELT 349 (S.C.). Admittedly, no show-cause notice under Section 11A of the Act, has been issued to the appellant making demand of short payment of duty to be un-sustainable. 3.5 Regarding duty liability on account of the retrospective amendment of Notification No.32/99-CE dated 08.07.99 vide Finance Act, 2003 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of Excise as the case may be. The word OR has been given a purposeful meaning in view of the object of Industrial Policy and the same has to be read as AND . Otherwise, the purpose of the said Notification will not be fulfilled. In this regard, reliance has been placed by the ld.Advocate on the judgement of the Hon ble Supreme Court in the case of Spentex Industries Ltd. Vs. CCE : 2015 (324) ELT 684 (S.C.). In view of the above, the ld.Advocate contended that the Commissioner (Appeals) has erred in recording the findings and dismissing the appeal and the same need to be set aside. 4. Per contra, the ld.A.R. appearing on behalf of the Revenue, supported the impugned order passed by the ld.Commissioner (Appeals) and reiterated the findings contained therein. 5. We have heard the rival submissions and considered the appeal records. 6. The issue before us is to decide as to whether the appellant was correct in debiting the amount pertaining to the retrospective amendment vide Finance Act, 2003 by making adjustment in the Cenvat Credit Account or otherwise and denial of refund on account of AED and Education Cess under the Notification No.32/99-CE dated 08.07.99. Along wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount debited through RG23A, Part II cannot be now said to have been not paid by the appellant. The debits in RG23A, Part II during the relevant period were done after ascertaining the balance on those dates. The department s case is that the appellant should have paid the duty during the relevant period when they raised the supplementary invoices. Though this may be correct, the fact that the appellant has on their own deposited the amount cannot be brushed aside. Hence, the Commissioner (Appeals) finding that debits made by the appellant prior to the issuance of show cause notice through RG23 A, Part II are valid debits, cannot be faulted and is a correct legal position. As regards payment of duty for the period 16-7- 2000 to 31-8-2000 for the supplementary invoices raised by the appellant, I find that the appellant has discharged the duty liability through debits in RG 23A, Part II in the month of March, 2001 and September, 2001. It is not alleged nor also is the contention of the Revenue that when the duty was paid in March, 2001 and September, 2001 there was no balance in RG23A, Part II account. Since this allegation or contention is not raised in the show cause notice as wel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or is normally disjunctive and and is normally conjunctive (See Union of India v. Kamlabhai Harjiwandas Parekh and Others - (1968) 1 SCR 463). However, there may be circumstances where these words are to be read as vice versa to give effect to manifest intention of the Legislature as disclosed from the context. 24. Of course, these two words normally or and and are to be given their literal meaning in unless some other part of same statute or the clear intention of it requires that to be done. However, wherever use of such a word, viz., and / or produces unintelligible or absurd results, the Court has power to read the word or as and and vice versa to give effect to the intention of the Legislature which is otherwise quite clear. This was so done in the case of State of Bombay v. R.M.D. Chamarbaugwala - (1957) 1 SCR 874 and while doing so, the Court observed as under : ...Considering the nature, scope and effect of the impugned Act, we entertain no doubt whatever that the first category of prize competitions does not include any innocent prize competitions. Such is what we conceive to be the clear intention of the Legislature as expressed in the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X
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