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TMI Blog2009 (6) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... uch 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 the cases leading to these Appeals are similar. For the purpose of convenience, facts in Appeal No. 49 of 2004 may be stated in brief thus : The respondent is engaged in manufacture of decotised man-made/chemile fabrics. The respondent had cleared goods under bond and also submitted final proof of export and also had not made any separate claim for rebate. The respondent was availing credit of the duties paid on inputs under Rule 57A of the Central Excise Rules, 1944. It was also required to pay additional excise duty on textile and textile articles. The respondent applied for refund of the duty, including the basis excise duty and the additional excise duty on textile and textile articles. The Assistant Commissioner of Central Excise held the respondents entitled for refund of basic excise duty, but found that refund could not be allowed in respect of addit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny 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 consumption or for export on payment of duty. It further provides that where for any reason such adjustment is not possible, the manufacturer shall be allowed refund of such amount subject to such safeguards, conditions and limitations as may be specified by the Central Government by notification. 5. It is the case of the respondent that almost total final products produced by the respondent were exported on bond or on payment of duty and, therefore, it was not possible to utilise the credit of the duty paid on inputs used for the final products. This contention is not in dispute. According to the respondents, they are entitled to refund of the total credit in respect of the basic duty as well as the additional excise duty paid on the inputs used in production of the final products. On behalf of the Revenue, it is vehemently contended that the respondent would b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 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 Credit Rules and the Additional Duties of Excise (Goods of Special Importance) Act, it was clarified by the said circular that refund of AED (GSI) shall be allowed under Rule 5 of Cenvat Credit Rules, 2002 regardless of the fact the said duty is not leviable on the final products. Para 3 of the circular reads as follows : "Accordingly, it is clarified that the refund of AED (GSI) shall be allowed under Rule 5 of Cenvat Credit Rules, 2002 regardless of the fact that the said duty is not leviable on the finished product. Pending cases if any, may be decided accordingly." Thus, it specifically provided that "pending cases, if any, may be decided accordingly". It was contended on behalf of the Revenue that the said circular dated 12-3-2003 was applicable only in respect of additional excise duty on goods of special importance and it could not be applicable to the additio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lear 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 decided accordingly," in para 3 of that circular would also be material and it must be held that even though the clarification about refund of additional duty of excise (T&TA) was issued on 22-3-2007, it was to be applicable to all the pending cases and therefore, its application cannot be restricted only to future. 9. In Arviva Industries (I) Ltd. v. Union of India - 2004 (167) E.L.T. 135 (Bom.), the Division Bench of this Court observed as follows in para 13 : "13. In Paper Products Ltd., the Supreme Court ruled that the circulars issued by the Board were binding on the departmental authorities and the department cannot repudiate the circular issued by the Board on the basis that it was inconsistent with the statutory provision. Same thing is sought to be done by the department by repudiating the Circular No. 39/99 issued by the Board though in the garb that the said ..... 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