TMI Blog2009 (6) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... i P.S. Jetley with A.S. Rao, for the Appellant. S/Shri Prakash Shah with Jitu Motwani and J. Sanghavi i/b. PDS Legal, for the Respondent. [Judgment per : J.H. Bhatia, J.]. - All these Appeals are filed by the Revenue challenging the dismissal of their appeals by the CESTAT against the order passed by the Commissioner of Central Excise, who had allowed the three appeals of the respondents against the order of the Assistant Commissioner of Central Excise refusing refund of additional excise duty. The common question of law in all these appeals is as follows :- "Whether in the facts and in the circumstances of the case the Tribunal was right in law in holding that "Boards Circular No. 701/17/2003-CX., dated 12-3-2003 allows refund of unutilized credit of Additional duty of Excise (Goods of Special Importance) on export of the finished goods even if such finished goods are not subjected to levy of the said additional duty", when the said Circular do not have retrospective application to the period before introduction of Cenvat Rules, 2002. The restriction on utilizing credit of duty paid under T TA Act, was removed vide Notfn. No. 13/2003, dated 1-3-2003". 2. Facts in all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7A specifically empowers the Central Government to specify by notification finished excisable goods for the purpose of allowing the credit of any duty of excise or the additional duty, as may be specified in the said notification, paid on the goods used in the manufacture of such final products. Thus, the availability of the credit is controlled by notification issued by the Government of India from time to time. Rule 57F deals with the procedure of utilization of credit allowed in respect of the duty paid on the inputs. Sub-rule (12) of Rule 57F specifically provides that the credit of specified duty allowed in respect of any input, may be utilized by the manufacturer of the final product towards payment of duty of excise on any of the final products in the manufacture of which such inputs are intended to be used. Sub-rule (13) of Rule 57F provides that where any inputs are used in the final products which are cleared for export under bond or used in the intermediate products cleared for export, the credit of specified duty in respect of the inputs so used shall be allowed to be utilized by the manufacturer towards payment of duty of excise on any final products cleared for home c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... far as it related to the additional duty of excise paid under the Additional Duties of Excise (T TA) Act shall be allowed to be utilized only towards payment of duty of excise payable under the Additional Duties of Excise (T TA) Act on the final products or as the case may be on the inputs if such inputs have been permitted to be cleared under Rule 57A. On the basis of this proviso in the notification dated 20-5-1994, it is vehemently argued by the learned counsel for Revenue that the credit allowed to the respondents in respect of the additional duty could be utilized only towards payment of duty of excise leviable under the Additional Duties of Excise (Textiles and Textile Articles) Act on the final products and there is no provision for refund of the same. 7. The Tribunal however, did not accept the contention of the Revenue, particularly in view of the Circular No. 701/17/2003-CX., dated 12-3-2003 issued by the Central Board of Excise and Customs in respect of refund of unutilized credit of Additional Duties of Excise (Goods of Special Importance) in terms of Rule 5 of Cenvat Credit Rules, 2002. After considering the relevant provisions, particularly Rule 5 of the Cenvat Cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordingly" clearly indicate that the circular would be applicable to all the pending cases without any exception. It was immaterial before which authority the case is pending. It only indicates that the circular about the refund of AED (GSI) would not be applicable only to those cases which were finally closed by that time. Taking into consideration the language of para 3 of the circular, we find it difficult to accept the contention of the Revenue that it could not be given retrospective effect. As far as the circular dated 22-3-2007 extending the applicability of the earlier circular dated 12-3-2003 to the AED (T TA) is concerned, it also clearly indicates that the second circular was in nature of clarification and it was clarified that the clarification given by the Central Board by earlier circular dated 12-3-2003 would be applicable to AED (T TA) also. Thus, it is clear that this circular dated 12-3-2003 would be applicable in respect of the claim for refund of AED (T TA). It nowhere points out that it would have only prospective effect and not retrospective effect. If, as per this circular, the circular dated 12-3-2003 is applicable, the words "pending cases, if any, may be de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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