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2015 (11) TMI 323 - SC - Central ExciseBenefit of exemption Notification No. 5/99-CE dated 28.02.1999 - credit under Rule 57A or Rule 57B or Rule 57Q of the Central Excise Rules, 1944 - Held that:- The product of the respondent is covered by the description of goods at Serial No. 133 of the Table annexed with the General Exemption Notification. The assessee, however, had utilized the MODVAT credit in the previous two years prior to 28.02.1999. As per the assessee, after the issuance of this notification, no such MODVAT credit was ever taken or utilized. Even the earlier MODVAT credit which was utilised was returned or paid back on 10.01.2005. In this We note that five-Member Bench of the Tribunal in the case of 'Franco Italian Co. Pvt. Ltd. v. Commissioner' [2000 (8) TMI 109 - CEGAT, COURT NO. III, NEW DELHI] had taken the view that even if the MODVAT credit was utilised but, thereafter, refunded, it would amount to not utilising the said MODVAT credit. Same view has been taken by the High Court of Allahabad in 'Hello Mineral Water (P) Ltd. v. Union of India' [2004 (7) TMI 98 - HIGH COURT OF JUDICATURE AT ALLAHABAD]. - as far as the aforesaid two judgments are concerned, they were accepted by the Department and no appeal was filed thereagainst - No reason to interfere with this order - Decided against Revenue.
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