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TMI Blog2008 (12) TMI 488X X X X Extracts X X X X X X X X Extracts X X X X ..... reversibility of input credit for commonly used input to manufacture dutiable and exempted goods. 2.1 During the impugned period, the Appellant manufactured both dutiable and exempted goods and was availing Modvat credit in respect of inputs used. It followed practice to debit the Modvatable credit in every month in RG-23A Part-II register on pro-rata basis taking into account percentage of the value of dutiable footwear and exempted/export footwear cleared from the factory. Such practice continued from 1-3-1987. However, by Order dated 30-9-1992 learned Commissioner of Central Excise, Patna required the Appellant to debit back the credit with reference to number of pairs of dutiable and exempted varieties as appropriate procedure th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discharge of the duty liability. But such act of the Appellant was objected by Department by letter dated 28-11-1994 and the Appellant was directed to deposit back the above amount on the pain of penal action. Sequal to letter dated 28-11-1994, learned Assistant Commissioner also passed an order on 2-5-1996 directing the Appellant to reverse the credit. That Order was Appealed before learned Commissioner (Appeals) which was disposed by Order dated 31-5-1996 remanding the matter to learned Assistant Commissioner. 3.1 Pursuant to the direction of the Tribunal by Order dated 20-4-1993 in first round of litigation as aforesaid, learned Commissioner of Central Excise, Patna passed an Order on 28-10-1994 calling for various facts and figure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... early so as to permit it use of the credit lying to its credit. An Order dated 1-6-1999 was passed by the learned Commissioner directing the Appellant to submit various facts and figures. The Appellant complied to such Order and submitted required information for the period from August 1991 to August 1996 and that was scrutinized by the Authorities. For the delay of the Department to communicate decision of the dispute, the Appellant prayed the Authority on 28-6-2000 and 11-7-2000 to determine the reversible amount out of unutilized credit balance of Rs. 98,95,442.22 (Rupees Ninety Eight Lakhs Ninety Five Thousand Four Hundred Forty Two and Twenty Two Paisa only) at the earliest. But that was in vain. Learned Deputy Commissioner by Order da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Department that in view of order dated 12-1-2001 permitting reversal of credit of Rs. 24,82,488/-, the restraint imposed earlier for no use of the credit was withdrawn/lifted and no order of adjudication was required to be passed. 5. Being aggrieved by aforesaid letter dated 5-4-2002 communicated to the Appellant as above, the Appellant came in fourth round of litigation before Tribunal in Appeal Case No. E-360/2002. This appeal was disposed by order dated 31-1-2003 [2003 (162) E.L.T. 471 (Tri. - Kolkata)] holding that the learned Commissioner was duty bound to pass an order of adjudication after issue of show cause notice to the Appellant. Consequently SCN dated 6-12-2004 was issued proposing rejection of refund claim of the Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6,29,977.97 (Rupees Forty Six Lakhs Twenty Nine Thousand Nine Hundred and Seventy Seven and Ninety Seven paisa only) in that year. When the Department restrained the Appellant from further use of the credit, the Appellant also followed such restraint order. The Order dated 12-1-2001 passed by the learned Deputy Commissioner having showed that withdrawal/lifting of restraint order was made as per communication of the Department by their letter dated 5-4-2002, it clearly proves that the Appellant was not required to suffer by any restraint unreasonably imposed by the Department. Therefore the Appellant should succeed in the Appeal and the impugned order dated 16-8-2005 passed by the learned Commissioner requires to be set aside. 8. Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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