9911796707
TMI Blog2003 (10) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... redit in respect of HSD oil used in the factory. In terms of the order-in-original passed by the Assistant Commissioner, the credit amount was denied to them and recovery of appropriate interest was also ordered. The said recovery was ordered in terms of provisions contained in Section 112(2) of the Finance Act, 2000. The said Section 112(2) was incorporated in the Finance Act to validate the denial of credit of duty paid on High Speed Diesel oil and also to disallow such credit to be utilised for payment of any kind of duty on any excisable goods from 16-3-1995 till 12-5-2000 (date of President's Assent to Finance Act, 2000). The appellants had taken the credit of duty paid in respect of HSD oil prior to enactment of the Finance Act, 2000. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... :- "Recovery shall be made of all the credit of duty, which have been taken or utilised but which would not have been allowed to be taken or utilised; if the provisions of sub-section (1) had been in force at all material times, within a period of thirty days from the date on which the Finance Act, 2000 receives the assent of the President and in the event of nonpayment of such credit of duty within this period, in addition to the amount of credit of such duty recoverable, interest at the rate of twenty-four per cent per annum shall be payable, from the date immediately after the expiry of the said period of thirty days till the date of payment." 6.The ld. Advocate has pleaded that unless and until the show cause notice is issued and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive denial of credit, the process of recovery has to follow the limitations laid down by Section 11A of the Central Excise Act, and the rules made thereunder. Referring to the retrospective amendments introduced in respect of Rules 9 and 49 it was pleaded that, in terms of Supreme Court's judgment in J.K. Spinning Weaving Mills Ltd. another v. Union of India reported in 1987 (32) E.L.T. 234 (S.C.), retrospective levy has to be bound by limitations under Section 11A. Conversely it is pleaded that unless proceedings are initiated in terms of provisions contained in Section 11A and concluded in a confirmed demand, there can be no recovery. For making any recovery an assessment is a must. In other words, the learned Counsel submits that un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alled, till the expiry of 30 days from the date of assent. Similarly for making payment also, issue of a communication or an order directing the payment of the credit taken is not a pre-condition. In case, if the logic advanced by the ld. Counsel, was to be accepted, despite the clear mandate provided, in Section 112(2)(b), no recoveries of credit can be possible in cases where either the show cause notice has not been issued or adjudicated. Such an interpretation would be contrary to the overriding provisions contained in Section 112(2)(a) which amongst other things even, prohibits allowing of credit through an order of a Court or any other authority. Therefore, we hold that, it was legally incumbent on the appellants to pay back the credi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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