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2017 (3) TMI 653 - HC - Central ExciseRejection of refund claim - benefit of N/N. 10/2004/C.E. (N.T.) dated 3rd June, 2004 - retrospective effect or prospective effect? - whether the impugned order passed by the adjudicating authority is contrary to the decision of this court in the case of Zenith Spinners v. Union of India [2005 (11) TMI 440 - GUJARAT HIGH COURT] ? - Held that: - A perusal of the decision of this court in the case of Zenith Spinners v. Union of India clearly shows that the same does not in any manner say that the same would be applicable only to the retrospective applicability of the notification. In the said decision, the court has held that the impugned notification being N/N. 10/2004/C.E. (N.T.) dated 3rd June, 2004 is bad in law for the reasons recorded in the order, namely, that it is not in consonance with the principal provisions, namely, rules 18 and 19 of the rules, and that it is, even otherwise, revenue neutral. The court held that the Central Board of Excise and Customs cannot exercise powers under rule 19 of the rules to negate a notification issued by the Central Government under rule 18 of the rules and has, accordingly, declared the same to be bad in law and quashed and set aside the same. Therefore, it is the entire notification which has been set aside and not merely the retrospective applicability thereof. The decision would be squarely applicable to the facts of the present case, and the distinction sought to be drawn by the adjudicating authority is misconceived. This court having struck down N/N. 10/2004-CE(NT) dated 3rd June, 2004 it was not permissible for the adjudicating authority to place reliance upon the same for the purpose of denying the benefit of rebate to the petitioners. The impugned order being in direct conflict with the law laid down by the jurisdictional High Court, therefore, cannot be sustained. Since the rebate claims have been disallowed solely on the basis of N/N. 10/2004-CE(NT) dated 3rd June, 2004, no useful purpose would be served by remanding the matter to the adjudicating authority and the rebate claims deserve to be allowed. Petition allowed - decided in favor of petitioner.
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