TMI Blog1994 (5) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... e him by M/s. Orient Paper and Industries Limited. It was held by Collector (Appeals) in the said Orders that even after the rescinding of Notification 201/79 with effect from 1-3-1986, their right to the benefit thereof during the period when the same was in force remained intact. He relied upon Tribunal s Order No. 87/1991-C, dated 29-1-1991 in a matter concerning the present respondents themselves and in another case relating to MRF Ltd. reported under 1990 (50) E.L.T. 482. As both the appeals involve identical questions and as they were argued together we are passing this combined order disposing of both the appeals. 2. Shri N.K. Mandal, learned Departmental Representative argued the matter on behalf of the appellant Collector. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch rescission cannot affect past rights already acquired. Thus, it cannot be said that if Credit had been wrongly taken and availed, it could not be recovered later on only on the ground that the Notification had been rescinded. Just as the Government has such a right to recover wrongly utilised Credit even after the deletion of the relevant provision, the assessee also has the right to have the benefit of Credit, notwithstanding the rescinding of the Notification. Shri Bagaria also pointed out that when the Writ Petition filed by them before the Honourable Orissa high Court was decided, the Counsels of both the sides had given their respective consent. At that time, the Notification 201/79 had already lapsed. The High Court directed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad been rescinded with effect from 1-3-1986; (v) the Tribunal decisions relied upon by the Collector (Appeals) are not applicable as the facts therein were different; (vi) In any case no refund is due to them as they had passed on the duty burden to their customers. 5. The argument that they could have taken the Credit is not a valid one. When the Department has issued a show cause notice and the Superintendent had even disallowed the Credit in the RG-23 Part-II Account, they could not have taken the Credit. If they had taken the Credit in defiance of the notice and the Superintendent s direction and Order in the RG-23 Part-II Account, they would have attracted action from the Department. What they actually did by not taking the Credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... say that since the Notification has been rescinded the respondents would not be eligible for the benefit thereof. The Tribunal decision in the respondents own case which was relied upon by the Collector (Appeals) cannot be said to be not relevant to the present case on the ground that it dealt with a different Notification namely 225/86. Even if the notification was different the central point involved was the same. Credit accrued to them under the Notification could not be availed of by them due to Department s denial of permission. When the permission was actually granted the notification had been rescinded. This is the situation in both the cases and the ratio of the said decision is equally applicable to the present case. Once the Cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the appeals in the this regard fails. More importantly, this provision refers to payment of refund of duty to the applicant of Credit of duty paid on inputs in accordance with the rules or a notification. Thus refund of Credit of duty to the applicant is contemplated and is, in fact, permitted. The relevant provision (whether Rules or Notifications) may provide that no refund is payable but that provision has to be read harmoniously in conjunction with Section 11B(2) proviso (c). The provision regarding non-payment of refund of Credit has to be read down and confined to normal cases where availment of Credit for utilisation for the payment of duty is possible and not in cases where such availment is rendered impossible of fulfilment by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was also no impediment in law to grant you such permission. But see language of Clause 5. Since we did not give you the permission you cannot be permitted to adjust. We are sorry we should have given you the permission. But now that the period is over, nothing can be done. The Honourable Court observed that the appellants did not have prior permission because it was withheld by the Revenue without any justification. They observed that a permission of the nature was a technical requirement and could be issued making it operative from the time it was applied for. 8. We feel, with respect, that the approach taken by the Honourable Supreme Court in the above case would be applicable in the present case. This, coupled with the harmoniou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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