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TMI Blog2020 (1) TMI 1451X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Alternatively, any order under any provision of this Act or the Rules made thereunder amounts to assessment if such a decision concerns the levy of duty. It is to be seen that basically the exemption provided by the Notification No 32/99 is operationalised by way of granting refund of the duty paid by the units which claimed the exemption contained therein. It cannot be said that the refund did not arise from an order of assessment - Understandably, the amount is to be paid from the credit of duties availed by the manufacturer, on the inputs and capital goods used by him. Once the amount is refunded in terms of Notification 32/99, it acquires the nature of duty and therefore, the provisions of Section 11A are attracted - the Revenue has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 08.07.1999 - The learned Counsel for the appellant further, seeks to rely on the CBEC Circular dated 9 July 1999. On going through the provisions of the said Circular, we find that the said Circular was issued to operationalise the notification and as such cannot come to the rescue of the appellant. The Department has correctly invoked the provisions of Section 11A to recover the amount refunded erroneously - Appeal dismissed. - Excise Appeal No.206 of 2009 - FINAL ORDER NO.75346/2020 - Dated:- 16-1-2020 - MR. DILIP GUPTA, PRESIDENT AND SHRI P. ANJANI KUMAR, TECHNICAL MEMBER Shri A.K. Bhattacharya, Consultant for the Appellant Shri K. Chowdhury, Authorized Representative for the Appellant` ORDER Heard both sid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Central Excise, Shillong Vs. Jellalpore Tea Estate as reported in 2011 (268) ELT 14 (Gau.); on the decision of the Tribunal in the case of Commissioner of Central Excise, Shillong Vs. Assam Surfactants as reported in 2007 (217) ELT 123 (Tri.-Kolkata). 5. Per contra, the learned Authorised Representative, appearing for the Revenue, submits that the brief issues involved in the instant case are as to whether the amount is payable under Sub-Rule 5 of Rule 3 of Cenvat Credit Rules, 2004, or not and as to whether the exemption in terms of Notification No.32/99-CE dated 08.07.1999, is applicable to the goods, which are procured by the appellants and removed afterwards. Learned Authorised Representative also submits that the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds as under:- 11A. Recovery of duties not levied or not paid or short paid or short-levied or short-paid or erroneously refunded Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, for any reason 8. A plain reading gives a clear understanding that it not only provides for the recovery of duties not paid/ not levied or short paid/short levied but also provides for recovery of duty erroneously refunded irrespective of the fact whether or not the refund is on account of any assessment. Alternatively, any order under any provision of this Act or the Rules made thereunder amounts to assessment if such a decision concerns the levy of duty. It is to be seen that basic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Revenue has correctly invoked the provisions of Section 11A to recover the amount or duty erroneously refunded in the instant case. 9. Ongoing through the provisions of the Notification No.32/99-CE dated 08.07.1999, it is abundantly clear that the scheme of the Notification is available to the manufacturer in the specified area mentioned therein in the Notification. Paragraph 1A of the Notification clearly states that in cases where all the goods produced by a manufacturer are eligible for exemption under this notification, the exemption contained in this notification shall be available subject to the condition that the manufacturer first utilizes whole of the Cenvat credit available to him on the last day of the month under considera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the manufacturer. An interpretation that the exemption would be applicable to all the goods cleared by the manufacturer, would defeat the very purpose of the notification. At this juncture, learned Authorised Representative, highlighting the intention of the Notification, submits that the intention of the Government was to incentivize production activity in specified areas: If exemption is made applicable to inputs and capital goods cleared by manufacturers after procurement, the specified areas would turn out to be trading hubs rather than production centres. We find that there is substance in the contention of the learned Authorised Representative. 10. Learned Counsel for the appellant, intervenes and submits that they have acted upon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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