TMI Blog2010 (12) TMI 442X X X X Extracts X X X X X X X X Extracts X X X X ..... nd comments of the petitioner. It cannot be held that the impugned order is without any basis or material or justification - The conclusion is that the allegation was, prima facie, established - Having regard to the nature of power, the Board is not expected to finally adjudicate on the matter - There was no occasion for further or enhanced restrictions in the absence of any fresh material or circumstance - There is no discussion for imposing higher restrictions in the impugned order over and above - To this extent, contention on behalf of the petitioner has to succeed - Hence, partly allow this petition and set aside the impugned order - 21859 of 2010 (O&M) - - - Dated:- 21-12-2010 - Adarsh Kumar Goel and Rajesh Bindal, JJ. REPRE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Board vide order dated 23-8-2010, after recording a prima facie finding of evasion of duty by the petitioner passed order, the operative part of which is as under :- 8. In view of the foregoing, I hereby pass the following order :- i. The facility of monthly payment of excise duty by M/s. Modulus Prefab Solutions, Sector 4, Old Kasauli Road, Parwanoo (H.P.), as provided under rule 8(1) of the Central Excise Rules, 2002 is ordered to be withdrawn and they are required to pay excise duty for each consignment at the time of removal of the goods with effect from 27-8-10 to 28-2-11. ii. Payment of excise duty by utilization of CENVAT credit as provided under rule 3(4) of the CENVAT Credit Rules, 2004, is ordered to be stopped with effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 32/2006-C.E. (N.T.), dated 30-12-2006 as well as order dated 23-8-2010. 5. The writ petition was disposed of on 15-11-2010 holding that the Board could not take a decision without considering the view point of the petitioner against the recommendations of the Chief Commissioner as held by this Court on 15-10-2010 in CWP No. 16796 of 2010 [M/s. Saviton Metplast (P) Ltd. v. Union of India and Others] [2011 (263) E.L.T. 519 (P H)]. The impugned provisions were, however, upheld. A direction was issued for passing a fresh order within two weeks of receipt of comments of the petitioner. The operative part of the order is as under :- 8. Question now is as to what relief can be granted. The impugned order was passed before our order dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, the operative part of which is as under :- 14. In view of the foregoing, I hereby pass the following order :- (a) The facility of monthly payment of excise duty by M/s. Modulus Prefab Solutions, Sector 4, Old Kasauli Road, Parwanoo (H.P.), as provided under rule 8(1) of the Central Excise Rules, 2002 is ordered to be withdrawn and they are required to pay excise duty for each consignment at the time of removal of the goods with effect from 1-12-10 to 31-5-11. (b) Payment of excise duty by utilization CENVAT credit as provided under rule 3(4) of the CENVAT Credit Rules, 2004, is ordered to be stopped with effect from 1-12-10 to 31-5-11. During this period, they are required to pay excise duty without utilizing CENVAT credit. Howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epresenting the Board in respect of statutory order passed by it. It is a different matter that the Commissioner may otherwise defend the order as representative of the department. 11. The question for consideration is whether there was justification for the impugned order and for imposing higher and further restrictions in the impugned order over and above earlier order dated 23-8-2010. 12. As regards justification for the impugned order, we find that there is material in support of the allegation of wrong availment of CENVAT credit. As per proposal of the Chief Commissioner, the assessee availed credit worth ₹ 65.66 lacs from December 2006 to August 2008 on G.C. Sheets which were not used for manufacturing of goods. This proposa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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