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TMI Blog2023 (9) TMI 1371X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner and the refund for the period August, 2006 to October, 2006 were not required to be appropriated. Appeal allowed. - MR. ASHOK JINDAL, MEMBER (JUDICIAL) AND MR .K.ANPAZHAKAN, MEMBER (TECHNICAL) Shri Rahul Tangri Shri Shovit Betal, both Advocates for the Appellant Shri S. Mukhapadhyay, Authorized Representative for the Respondent ORDER As the issue in both the appeals is common, therefore, both are disposed off by a common order. 2. The facts of the cases in both the appeals are as under : M/s. Ozone Pharmaceuticals Limited as well as M/s Ozone Ayurvedics are engaged in manufacturing of medicines falling under sub heading 3003 10 of the 1st Schedule to the Central Excise Tariff Act, 1985 and is registered with the department vide Registration No. AAACO0056HXM002 and AATPS8259CXM002 respectively. a. 08.07.1999 NN-32/99-CE was brought into effect wherein excise duty exemption was granted to goods cleared from units located in Export Promotion Industrial Parks (EPIP) in the State of Assam. The exemption was available to new industrial units which commenced its commercial production on or afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctive effect from the date of bringing into effect NN-32/99-CE that is w.e.f. 08.07.1999. Therefore, the restrictive condition brought into effect for the very first time vide NN-61/02-CE will deem to always have been in place right from the 08.07.1999. Again, vide Section 153(4) of the Act, the department was empowered to recover inter alia any amount of duty which has been refunded but which would not have been refunded, within 30 days, if the restrictive condition brought in by NN-61/2002-CE was applicable, right from 08.07.1999. Similarly, retrospective effect was given to amendments made in Rule 3 vide NN-42/2002CE (NT) vide Section 152 of the Act. h. 02.06.2023 03.06.2023 Thereafter, the Deputy Commissioner of Central Excise, Guwahati by exercising its power under Section 153(4) of the Finance Act, 2003 without giving any notice to the Appellant passed order bearing C No. V (15)26/SPL/ACG/03/6752 directing the Appellant to pay Rs. 1,01,20,672/- being amount refunded in excess during the period upto 22.12.2002, within a period of 30 days from 14.05.2003, and in the event of failure, interest @15% p.a. sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants to file an appeal before the Ld. Commissioner (Appeals). Further, the appellate authority was directed to decide the matter by considering the issues relating to facts and law, by reference to the documents on record relating to transactions, quantum of credit availed, amount taken refund on payment through PLA and factum of not availing refund of CENVAT credit at any point of time. The said ruling was reported at 2014 (308) ELT 433 (SC) . o. 06.01.2015 The Appellants filed respective appeals before the Ld. Commissioner (Appeals) impugning the orders dated 02.06.2003 and 03.09.2003. [Pg. 98-168 of the Appeal Paper Book for Ozone Pharma] and order dated 03.06.2003 and 05.09.2003. p. 31.03.2015 The Ld. Commissioner (Appeals) dismissed the appeals of the Appellants upholding the orders passed by the Ld. Deputy Commissioner. Being aggrieved with the said orders, the appellants are in appeal. 3. The ld.Advocate for the appellants submits that on the basis of the facts reproduced above, it is submitted that, immediately after the amendment of NN-3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the entire Cenvat credit upto the enactment of Finance Act, 2003 never got any refund under the Notification in excess, thus, there is no question of recovery by invoking the said provision. 3.4 In this regard, reliance is placed the ratio of the judgment of the Hon ble CESTAT, Delhi in the case of Commissioner of C. Ex., Jammu vs. New India Wire and Cables, 2008 (232) ELT 681 (Tri-Del), which has been delivered in identical set of facts. In the said case, the assessee working under the similar area-based exemption notification availed the Cenvat credit in one month but carried forward and utilized the same in subsequent months. The department disputed the same and sought to recover the excess refund sanctioned to the assessee in the initial month where the Cenvat credit was not fully utilized. The Hon ble CESTAT, Delhi allowed the contention of the assessee that once the very same amount of Cenvat credit was utilized in the subsequent period, there is no loss to the revenue and thus, no demand is sustainable. It was also held that confirming demand in such a scenario would defeat the purpose of the notification. 3.5 Similar ratio has also been followed by the Hon ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot have been issued straightaway without issuing a notice to the Appellants because facts and circumstances of each case have to be looked into before making an order for recovery. It was submitted that no recovery could have been made by exercising power under Section 153(4) of the Finance Act, 2003 in the Appellants case because it had completely utilized the accumulated CENVAT credit amount before the Finance Act, 2003 came into effect and had not taken refund of such equivalent amount in cash. 3.9.1 It is further submitted that the Ld. Commissioner (Appeals) without considering the observations of the Hon ble Apex Court in its true spirit went ahead to uphold the order of recovery passed by the Ld. Deputy Commissioner by observing that the fact that the Appellants had utilized the entire amount of accumulated CENVAT credit after 22.12.2002 is irrelevant since the Hon ble Supreme Court s direction does not indicate to treat any point of time beyond 22.12.2002. 3.10 It is also submitted that such a finding is completely erroneous and contrary to the context in which the Hon ble Supreme Court had made the aforesaid observation. The Hon ble Supreme Court after adverting t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nths of August 2006 to October 2006. 3.14 In view of the aforesaid submissions, inasmuch as the demand per se is not sustainable, the said amounts are liable to be refunded to the appellants, along with appropriate interest. 4. The ld.A.R. for the Revenue supported the impugned order. 5. Heard both sides and considered the submissions. 6. We find that the similar issue has been dealt with by this Tribunal in the case of M/s Singla Cables (supra), wherein this Tribunal has recorded as under : 6. In this case, though during February 2006 to April 2006 period, the appellant for whatever reason, did not take Cenvat credit of Rs.10,72,419/- in respect of SAD resulting in higher quantum of exemption under Notification No. 56/2002-CE and thus higher quantum of refund, in December 2006 as soon as this was pointed out, they took the Cenvat credit of this amount, as a result of this in the month of December 2006 their refund claim was lesser to that extent. Thus, overall there was no excess availment of exemption under Notification No. 56/2002-CE, as the excess quantum of refund under Notification No. 56/2002-CE during February 2006 to April 2006, was neutralized by lesser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However, mandatory condition of the notification i.e. the manufacturer first utilizes whole of the Cenvat Credit available to him on the last date of the month shall be fulfilled invariably for the claim of refund of cash duty paid for that month. But keeping in view, the appellants applying for the benefit of notification No. 56/2002C.E., dated 14-11-2002 in the month of February, 2005 and their case being finalized in the month of October, 2006 (w.e.f. 25-12005) i.e. after a period of one year and eight months, I take a lenient view towards non-fulfilment of condition of the notification by the appellants. 4 . As is seen above, the credit which was required to be utilized in the previous months was subsequently utilized by the assessee in the succeeding months, the entire situation is revenue neutral and the Appellate Authority has rightly held that an interpretation which defeat the purpose of the notification should be avoided. As such, we do not find any infirmity in the view adopted by the Appellate Authority and reject the appeal filed by the Revenue. 8. In view of this, we hold that the issue is no more res integra. Accordingly, we hold that the refund clai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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