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TMI Blog2023 (11) TMI 1026X X X X Extracts X X X X X X X X Extracts X X X X ..... iod August, 2006 to October, 2006 were not required to be appropriated. The demand confirmed in the impugned order is not sustainable and is set aside - appeal allowed. - SHRI R. MURALIDHAR, MEMBER (JUDICIAL) AND SHRI K. ANPAZHAKAN, MEMBER (TECHNICAL) NONE for the Appellant (s) Shri S. Mukhopadhyay, Authorized Representative for the Revenue ORDER The instant appeal is filed by the Appellant against the impugned order dated 13.02.2015, 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.22,01,868/- together with interest amounting to Rs.15,65,611/- for the period 24.02.2000 to 22.12.2002. 2. Briefly stated facts of the case are that the Appellants are manufacturers 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 08.07.1999. The chronological events leading to the present appeal are summarized below: a. 08.07.1999 NN-32/99-CE was brought into effect wherein excise duty exemption wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enario 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 Commissioner of Central Excise, Guwahati by exercising the power under Section 153(4) of the Finance Act, 2003 passed Orders dated 02.06.2003 and 03.09.2003 confirming the demand of Rs.22,01,868/- together with interest amounting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 precedents it has been repeatedly held that demand of duty cannot be confirmed against the assessee if in the totality of the facts and circumstances of the case, no actual loss has been caused to the revenue. In this regard, reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Appellant was allowed. The relevant portion of the said order is reproduced below: 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 recorde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy 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, the appellants applying for the benefit of notification No. 56/2002-C.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. 25-1-2005) i.e. after a period of one year and eigh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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