9911796707
TMI Blog2003 (2) TMI 143X X X X Extracts X X X X X X X X Extracts X X X X ..... t of High Speed Diesel Oil during the period from 27-12-97 to 18-3-98; that the Deputy Commissioner allowed Modvat credit of Rs. 9,31,904/- availed of prior to 2-3-1998 and disallowed the balance credit of Rs. 13,14,060/- besides imposing a penalty of Rs. 2 lakhs by Order-in-Original No. 60/99, dated 30-7-99; that the disallowance of Modvat credit taken on or after 2-3-1998 was validated by Section 112 of the Finance Act, 2000; that accordingly the Appellate Tribunal upheld the Order but reduced the penalty to Rs. 10,000/-; that the Appellants have challenged the constitutional validity of Section 112 of the Finance Act, 2000, before the High Court of Delhi. He, further, submitted that the Deputy Commissioner, under 19 Adjudication Orders, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome recoverable and the demand existed thereto; that the law is well settled that an Order which has once become final and which has not been agitated in appeal cannot be disregarded and the recovery ought not to have been beyond Rs. 13,14,060/- towards duty and Rs. 10,000/- towards penalty, confirmed by the Tribunal. He relied upon the decision in Moti Laminates Pvt. Ltd. v. Union of India - 2002 (144) E.L.T. 3 (S.C.) and mentioned that this judgment is the Authority for the proposition that finality to the proceedings and orders already passed cannot be disregarded to create a demand or deny the refund merely because of a judicial pronouncement or even Legislative amendment; that accordingly there can be no recovery of any amount beyond R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emed to be and to always have been, for all purposes, as validly and effectively taken or done." The learned Departmental Representative, thus, contended that as the Parliament has denied the Modvat credit of duty paid on HSD oil with effect from 16-3-1995, the Appellants were not entitled to take the credit during the period from 16-3-1995 to 12-5-2000 (when Finance Act, 2000 received the assent of the President); that accordingly the such Modvat credit availed of them has rightly been appropriated from the amount of refund sanctioned to them; that as such Rs. 9,31,904/- taken by them as credit of the duty paid on HSD Oil is recoverable from the Appellant; that sub-section (2C) of Section 112 of the Finance Act, 2000 empowers the Revenue t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of refund amount sanctioned is only on account of the Modvat credit availed of by the Appellants in respect of HSD Oil. Section 11 of the Central Excise Act provides that in respect of duty and any other sums of any kind payable to the Central Government, the Central Excise Officers may deduct the amount from any money owing to the person from whom such sums may be recoverable or due. Thus the Revenue is entitled to recover the sums due from the Appellants out of the amount sanctioned as refund to them. We agree with the learned Advocate that the Revenue cannot recover the amount of Modvat credit of duty paid on HSD Oil which had been allowed by the Deputy Commissioner and which was not challenged by the Revenue by way of filing Appeal b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cement of any Order allowing them the Modvat credit. It is the Revenue which is effecting the recovery of Modvat credit which stands allowed by the Deputy Commissioner in 1999 without getting the said Adjudication Order set aside. It has been held by the Supreme Court in Moti Laminates (P) Ltd. (supra) that once the judgment having become final, the assessee is entitled to a refund. We thus hold that the Revenue is entitled to appropriate Rs. 13,14,060 towards the amount payable and Rs. 10,000/- towards penalty only from the amount of the refunds sanctioned to the Appellants. The Revenue cannot appropriate Rs. 9,31,904/- out of the amount sanctioned to the Appellants. The Appeals are disposed of in the above terms with consequential relief, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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