TMI Blog2010 (3) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... d that it will operate retrospectively. In the absence of the same, such amendment would operate prospectively. Moreover, the benefit already granted to the assessee under the statutory Rule 9A(3) cannot be taken away by issuance of notification by the subordinate legislation, because the subordinate legislation has neither any power nor jurisdiction to issue such notification with retrospective effect withdrawing the benefit already accrued and availed by it (assessee). - 175 and 176 of 2006 - - - Dated:- 4-3-2010 - CORAM: Hon'ble Mr.Justice Ashutosh Mohunta Hon'ble Mr.Justice Mehinder Singh Sullar Present:- Mr.Vikrant Kackria, Advocate for the appellant. Mr.Sanjeev Kaushik, Sr. Standing Counsel for the respondents. Mehinder Singh Sullar, J. As common questions of law and facts are involved in both the aforementioned appeals filed by the appellant-assessee M/s Vasu Knitwear (for brevity "the assessee"), therefore, we propose to decide the same, vide this single judgment, in order to avoid the repetition. However, for facilitation, the facts have been extracted from CEA No.175 of 2006 titled as "M/s Vasu Knitwear Versus Commissioner of Central Excise, L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvisaged under Notification No.47/2003-CE dated 17.5.2003, but the imposition of penalty was set aside, vide order dated 15.2.2006 Annexure P4). 7. The assessee still did not feel satisfied with the impugned orders and filed the present appeal. 8. Assailing the impugned orders, the learned counsel has vehemently argued that the assessee has rightly availed the Cenvat credit, as per Rule 9A of the Rules read with Serial No.1(c) of Notification No.35/2003-CE dated 10.4.2003. The argument is that the subsequent amendment of the said notification, vide Notification No.47/2003-CE dated 17.5.2003 cannot be made applicable retrospectively. Therefore, the authorities below fell in legal error and illegally rejected its claim in this relevant connection. 9. Hailing the impugned orders, on the contrary, learned counsel for the revenue has contended that since the notification No.35/2003-CE dated 10.4.2003 stands substituted by a subsequent notification No.47/2003-CE dated 17.5.2003, so the amendment would operate retrospectively and the authorities below have rightly calculated the amount of Cenvat credit, in view of the subsequent notification and no interference is called for in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Government in this behalf, having regard to the average price of such inputs, and the applicable rate of duty and the quantity of input as declared by the assessee under sub-Rule(2). (b)The credit of duty on inputs contained in the fabrics lying in stock as on the 31st day of March, 2003 shall be calculated in the following manner, namely:- (i) Where the inputs and the finished products are covered under Notification No.52/2001-Central Excise (NT) dated the 29th June, 2001, subject to such conditions as prescribed under the said notification, the credit shall be equal to such rate of credit as may be notified by the Central Government in this behalf, multiplied by the quantity of such finished product as declared by the assessee; or (ii)Where the inputs and the finished products are covered under Notification No.54/2001-Central Excise (NT) dated the 29th June, 2001, or 6/2002-Central Excise (NT) dated the Ist March 2002, subject to such conditions as prescribed under the said notifications, the credit shall be equal to the product of- (A) the applicable percentage credit in terms of the said notifications; (B) the value of such finished product declared by the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of duty" shall mean the rate of duty leviable under the Central Excise Tariff Act, 1985 (5 of 1986), the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957) and Additional Duties of Excise (Textile and Textile Articles) Act, 1978 (40 of 1978), as the case may be, read with any Notification, as on the Ist day of April, 2003; Explanation 3. -For the purposes of this Notification, "composite mill" means a manufacturer who is engaged in the processing of fabrics with the aid of power alongwith the spinning of yarn from fibres and weaving or knitting or crocheting of fabrics within the same factory and includes a multilocational composite mill, i.e. a public limited company which is engaged in the processing of fabrics with the aid of power alongwith the spinning of yarn from fibres and weaving or knitting or corcheting of fabrics in one or more factories owned by the same public limited company." 15. As is evident from the record that the assessee availed the credit under Rule 9A(3) of the Rules and as per entry at serial No.1(c) of the said notification. No doubt, the said notification was subsequently amended, vide another notification No.47/2003-C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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