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TMI Blog2002 (7) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... the indigenous inputs used in the manufacture of export products under DEEC. The Superintendent of Central Excise vide letter dated 22-6-95 called for details of exports under VABAL Scheme for the relevant years. While furnishing the reply, the appellants expunged the credit of Rs. 1,75,015/-. By his letter dated 6-7-95 the Superintendent called for all the records relating to VABAL exports. In the meantime, the Custom House wrote to the appellants seeking clarification on whether after availing the benefit of Custom Notification No. 203/92, the appellants had availed Modvat credit or other facilities under Central Excise and if so whether such Modvat credit has been reversed. The appellants vide their letters dated 10-10-95 and 25-10-95 gave details of DEEC advance licence etc. and the debits made viz. Rs. 1,75,015/- on 30-6-95 and Rs. 6,862/- on 3-4-95. 3. Whereas the Custom House issued a show cause notice dated 23-11-95 demanding duty of Rs. 3,51,28,100/- together with interest at 24% for the violation of the condition of the exemption Notification No. 203/92 in that the appellants had availed Modvat credit and other benefits under the Central Excise law in the manufacture of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ormula whereas they were required to reverse only a lesser amount on the basis of the actual availment on the inputs and so the difference should be refunded to them. The appellants had cited Tribunal and High Court judgments besides relying on the Board's Circulars No. 285/1/97-CX dated 18-1-97; No. 318/34/97-CX, dt. 26-6-97 and Trade Notice No. 9/97, dt. 29-1-97 issued by the CCE Ahmedabad [1997 (99) E.L.T. T17] and yet another Trade Notice No. 43/97 dated 31-3-97 issued by CCE, Bolpur [1997 (92) E.L.T. T13]. After taking into the consideration all the facts and relevant records, Ld. Commissioner (Appeals) has rejected the appeal of the appellant by recording a detailed order. 5. Ld. Consultant reiterated the written submission made in the grounds of appeal. He contended that the appellants had reversed the excess credit based on the formula whereas they were required to reverse only a small portion of the amount on the basis of the actual availment on the inputs and hence the difference should have been refunded to them. He also cited the decision of the Calcutta High Court in the case of Dilichand Shreelal v. CCE [1986 (26) E.L.T. 298], wherein when duty collected was in dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersal than the amount of Modvat wrongly availed (including interest) then he can apply for refund of the reversal Modvat amount. 6. Ld. Consultant further submitted that it is a settled position of law that even in the context of claiming the exemption where there are more than one notification, the assessee is at liberty to choose the one which is more beneficial to him and notification which is beneficial to the Government could not be thrust on him. In this context the Appellants rely on the following decisions of the Tribunal (1) 1994 (73) E.L.T. 297 (T) (2) 1989 (40) E.L.T. 368 (T) (sic). Hence, he pleaded that in the absence of any bar in the law, the lower authorities should not have created an artificial bar for denying the refund of excess credit reversed by inference or by intention that the law did not permit such refund even when the Bolpur Commissionerate's Trade Notice clarified to the contrary. Further, the Ld. Commissioner in the impugned order has enunciated a legal proposition that when an assessee chooses to pay certain amount to the Government or has reversed an amount as per Govt.'s instructions, he is prohibited from claiming refund of excess amount on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f reversing on the basis of actual and in such cases no refund arose. But, merely because appellants chose to comply with reversal on the basis of formula though under protest, they should not be penalised by such rejection of refund claim as this would cause discrimination between different exporters identically placed. To support this plea, the appellants rely on the decision of the Andhra Pradesh High Court in the case of Assistant Collector v. Andhra Fertilizer Limited - 1987 (32) E.L.T. 343 (A.P.), wherein the Hon'ble High Court had held that invidious discrimination between petitioner and others in the matter of paying duty not permissible on ground of public interest. 7. We have carefully considered the submission made by both the sides and gone through the case records. Shri A. Vijayaraghavan, learned Consultant had taken the plea that the appellants had reversed the excess credit based on the formula whereas they were required to reverse only lesser amount on the basis of the actual availment on the inputs. Therefore, the difference should be refunded to them. He further submitted that there was no dispute that the appellants had reversed more than the actual amount and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rable from the appellants as demanded in the show cause notice and he therefore dropped further proceedings. In arriving at this conclusion the Commissioner noted explicitly vide para 19 of the order that the Modvat credit in the appellants' case was reversed before 31-1-97 as per the amnesty scheme together with interest which was paid before that date. The learned Commissioner therefore, came to the conclusion that there was substantive compliance with the requirement of Notification No. 203/92 and hence the demand of duty did not survive. In the face of the above situation, the plea of the appellants to re-open the matter by asking for refunds of the excess amount paid, if any, is not justified as correctly observed by the lower authority more particularly when the Commissioner's order has attained finality as there was no appeal against that order. We find that the learned Commissioner (Appeals) has thoroughly examined this matter and the findings as contained in para 3 to 10 of the impugned order are reproduced herein below : 3. I have given my careful consideration to all the facts on record and I have also seen the impugned order. The matter was also heard through Shri A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actual basis published in Vol. (93) E.L.T. Part 2 T16 17. (iii) Trade Notice No. 9/97, dt. 29-1-97 issued by Commissioner of Central Excise Customs, Ahmedabad - 1997 (90) E.L.T. T17 wherein the exporters were allowed to reverse the actual credit obtained by them based on records available. (iv) Trade Notice No. 43/97, dt. 31-3-97 issued by CCE, Bolpur - 1997 (92) E.L.T. T13. They also pleaded that the responsibility has been cast on the proper officer viz., the Assistant Commissioner to verify the records as to satisfy whether credit to be reversed on actual basis was correct. They finally relied on Customs Commissioner Order No. S 59/DEEC/Misc/764/95-Gr.7 dated 8-9-97 (in their own case) wherein it has been clearly brought out that the appellants had reversed more than the actual amount and had preferred a refund claim for the excess before the concerned Central Excise authority. They pointed out that the above order has not restrained them from claiming refund of excess amount paid and hence the claim is allowable. 5. I am afraid I cannot agree with the pleadings of the appellants as above. It is on record that the appellants had availed the benefit of Notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the amnesty scheme together with the interest which was paid before that date. He therefore came to the conclusion that there was substantive compliance with the requirement of the Notification 203/92 and so the demand of duty did not survive. 7. In the face of the above situation, the appellants' plea to re-open the matter by asking for refund of the excess credit paid if any, is not justified as correctly observed by the lower authority particularly since the Commissioner's order has attained finality, there being no appeal against it. If the appellants have felt strongly that they ought not to have paid the amount of duty i.e. Rs. 14,24,334/- towards Modvat credit and Rs. 8,36,235/- towards interest, then they should not have obtained the certificate to that effect from the Assistant Commissioner but pursued the matter with the Assistant Commissioner for refund of the duty first and then taken up the matter thereafter with the Commissioner of Customs. It appears they want the best of both the worlds in this case, i.e. they wanted to have the customs case closed as also obtain refund of debit made which was the basis for closure of the Customs case. This is not possible. If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cribed by the Government and because of this, the Commissioner of Customs had confirmed the duty as proposed in the original show cause notice, whereas in the present case, the appellants had taken a stand before the Commissioner of Customs that they have debited as per the formula before 31-1-97 based on which the adjudication proceedings were dropped. Thus, the facts are clearly distinguishable and so the cited decision will not come to their rescue. Similarly, the facts of the present case are unique and cannot be compared with the facts in any other cited case laws none of which will advocate the appellants' cause. 10. In the light of the above discussions, I reject the appeal." In the light of the above findings recorded by the learned Commissioner (Appeals), we are of the considered opinion that the lower appellate authority has passed a well reasoned order and his order reflects application of mind and he has rightly rejected the appellants' appeal. We, therefore, confirm the impugned order and reject the appeal. Ordered accordingly. Sd/- (Jeet Ram Kait) Member (T) Dated : 15-5-2002 9. [Contra per : S.L. Peeran, Member (J)]. - I have carefully considered th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded by the Commissioner that what was paid voluntarily in respect of amnesty scheme and therefore they are not entitled for seeking re-verification is an incorrect order and against the principles of natural justice. 11. In that view of the matter I am of the considered opinion that the matter has to go back to the original authority for re-consideration of the claim of the appellant in terms of the evidence to be produced by the appellant. The original authority shall hear the appellant and pass a detailed considered order. Sd/- (S.L. Peeran) Member (J) Dated : 16-5-2002 DIFFERENCE OF OPINION In view of the difference of opinion between the Members in the matter the following points arise for consideration by the 3rd Member. Whether the appeal is required to be rejected as recorded by Hon'ble Member (T) Shri Jeet Ram Kait. Or Whether the impugned order is required to be set aside the matter remanded to the original authority for de novo consideration in the facts and circumstances as held by Member (J) Shri S. L. Peeran. Sd/- (Jeet Ram Kait) Member (T) Dated : 17-5-2002 Sd/-(S.L Peeran)Member (J) Dated : 16-5-2002 12. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. CC [2001 (134) E.L.T. 327 (S.C.) = 2001 (47) RLT 257 (SC)]. 14. From the position noted above, it is clear that appellant is entitled to restoration of the excess credit debited by him in compliance to the direction of the jurisdictional Central Excise authorities. It was permissible to reverse the Modvat credit on actual basis in terms of Board's circular. Any excess reversal made, particularly when it is the result of an order of the jurisdictional Central Excise authorities, is refundable in the light of the Circular of Bolpur Commissionerate. The restoration of credit is also required to be done in view of CEGAT's decision in the case of JCT Limited (supra). Issues like time bar cannot arise in the present case since reversal was made 'under protest'. 15. In view of what has been stated above, I am in agreement with the view taken by the Learned Member (Judicial) that the matter may be remanded to the original authority for de novo determination of the credit required to be restored to the appellant on account of its being in excess of credit required to be reversed on actual basis. Sd/- (C.N.B. Nair) Member (T) MAJORITY ORDER In terms of majority order, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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