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2008 (10) TMI 249 - HC - Central ExciseStay/Dispensation of pre-deposit - Captive consumption - Held that:- Taking into consideration financial position, while it did not choose to modify the earlier order dated 23rd Aug., 2001, observed that in case the department refunds the amount, the sum of ₹ 15 crores may be adjusted. The earlier order dated 23rd Aug., 2001, having not challenged by the appellant and in the present appeal the appellant having obtained an interim order for refund of the said amount of ₹ 44 crores and in view of the interim order dated 2nd April, 2003, the appellant having received the total amount of ₹ 44 crores, without any adjustment, giving reference to a subsequent circular dated 13th Feb., 2003, arguing the case on merit, they cannot derive any advantage to declare the order passed by CEGAT dated 2nd Nov., 2001 as illegal. The position of the company financially being better since the matter was pending before the CEGAT, it having received further amount of ₹ 44 crores by way of refund in view of interim order passed in this appeal, being in advantageous position, it cannot claim for waiver of amount in terms with the proviso to Section 35-F of the Central Excise Act, 1944.
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