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TMI Blog2023 (11) TMI 964X X X X Extracts X X X X X X X X Extracts X X X X ..... be appropriated. The ratio of the above cited decision is squarely applicable in this case as the facts and circumstances of the present case on hand is same as the case cited above. Thus, by following the ratio of the above cited decision, it is held that the demand confirmed in the impugned order is not sustainable. Appeal allowed. - HON BLE SHRI R. MURALIDHAR, MEMBER (JUDICIAL) And HON BLE SHRI K. ANPAZHAKAN, MEMBER (TECHNICAL) NONE for the Appellant (s) Shri S.Mukhopadhyay, Authorized Representative for the Revenue ORDER Per : K. ANPAZHAKAN : The instant appeal is filed by the Appellant against the impugned order dated 12.02.2015, passed by the Commissioner (Appeals), Guwahati, wherein he upheld the Orders dated 02.06.2003 and 03.09.2003 passed by the adjudicating authority, confirming the demand of Rs.39,81,566/- together with interest amounting to Rs.19,93,201/- for the period 24.02.2000 to 22.12.2002. 2. Briefly stated facts of the case are that the Appellant is a manufacturer of Cosmetics falling under Chapter 33 of the Central Excise Tariff, 1985. The Appellant has been availing the benefit of Notification 32/99-CE dated 08.07. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eir system and started utilizing CENVAT credit for payment of duty on clearance of its final products. The entire accumulated CENVAT credit as on 22.12.2002 was utilized by the Appellants during this period, leading to the scenario of Nil refund during the period February 2003 to May 2003. g. 14.05.2003 Finance Act, 2003 was notified. Vide Section 153(1) of the Act the amendment made by NN-61/02-CE was given retrospective 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-42/2002- CE (NT) vide Section 152 of the Act. 2.1. Thereafter, the Deputy Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question of recovery by invoking the said provision. 3.3 In this regard, reliance is placed the ratio of the judgment of the 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 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. 3.4 Similar ratio has also been followed by the Tribunal Delhi in the case of M/s Singla Cables vs. Commissioner of Central Excise, 2015 (2) TMI 381 CESTAT NEW DELHI. 3.5 Further, in a catena of judicial precede ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Commissioner (Appeals) inspite of admitting the utilization of Cenvat credit by the Appellants post 22.12.2002, ignored such documentary evidence and violated the decision of the CESTAT, Delhi in the case of Commissioner of C. Ex., Jammu vs. New India Wire and Cables, 2008 (232) ELT 681 (Tri-Del), wherein the utilization of Cenvat credit in subsequent month was held to have no revenue impact and within the intent and purposes of the area-based exemption notification. 3.10. In view of the aforesaid submissions, the Appellant contented that inasmuch as the demand per se is not sustainable, the said amounts are liable to be refunded to them, along with appropriate interest. 4. The matter was posted for hearing on 21.11.2023. None appeared on behalf of the Appellant. As the issue involved is of a narrow campus, the appeal has been taken up for disposal with the assistance of the Ld. D.R. During the hearing, it is informed by the Ld.D.R. that this bench has decided similar issue in the case of M/s Ozone Pharmaceuticals Limited Vs Commissioner of Central Excise and service Tax, Guwahati vide Final order No. 75782 0f 2015 dated 26.09.2023, wherein the appeal filed by the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid order of the Appellate Authority is impugned before us. 3. For better appreciation of the reasoning adopted by the Commissioner (Appeals) we reproduce the relevant paragraph :- In the present instance the purpose of the policy of the Govt. is to refund the duty paid in cash and merely not following one of the condition does not debar the appellants from the benefit. Moreover, when the appellants have exhausted the Cenvat credit in subsequent months. To quote a few instances, I observe that during the months of May 05, Dec. 06, January. 07 and March 07 the balance with the Cenvat account was NIL and during the Months of February 05 the balance was Rs. 102/-, March 06 it was Rs. 4030/-, April 06 it was Rs. 6885/-, July 06 it was Rs. 180/- only. This shows that the appellants had exhausted the Cenvat balance at some point or other if not in the respective months for which they filed the refund claims. 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, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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