TMI Blog2010 (4) TMI 936X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Shri S.P. Kesharwani, Sr. Standing Counsel, for the Respondent. ORDER In the present petition the petitioner seeks the following reliefs (i) send for the entire records from the respondents, leading to the enactment of the Section 112 including it s aims and objectives and further records leading to issuance of notices, for its kind perusal; (ii) declare Section 112 of Finance Act, 2000, ultra vires of the constitution and strike down the same; (iii) issue a writ or Certiorari quashing the provisions of Section 112 of the Finance Act, 2000 which retrospectively denies the availment of Modvat Credit on HSD Oil and further to quash the letter dated 4-8-2000 of the Superintendent Central Excise Range IX Division-II, Noida; (iv) issue a writ or Mandamus directing the respondents to keep the operation of letter dated 4-8-2000 in abeyance till the disposal of this writ petition; (v) issue any other writ, order or direction which this Hon ble Court may deem fit and proper under the circumstances of the case; (vi) and to award the cost of this writ petition to the petitioners. 2. The brief facts giving rise to the present petition are that the petitioner is en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been taken or utilised but which would not have been allowed to be taken or utilised, if the provisions of sub-section (1) had been in force at all material times, within a period of thirty days from the date on which the Finance Act, 2000 receives the assent of the President and in the event of non-payment of such credit of duty within this period in addition to the amount of credit of such duty recoverable, interest at the rate of twenty-four per cent. per annum shall be payable, from the date immediately after the expiry of the said period of thirty days till the date of payment. 5. In consequence of Section 112 of the Finance Act, the Superintendent, Central Excise, Range IX, Division II, Noida, vide letter dated 4-8-2000, after the expiry of thirty days from 12-5-2000, has directed the petitioner to deposit all the amount of Modvat credit taken on HSD oil along with interest, which is impugned in the present petition. 6. Heard Sri A.P. Mathur, learned counsel for the petitioner, and Sri S.P. Kesharwani, learned Senior Standing Counsel. 7. Sri A.P. Mathur, learned counsel for the petitioner, submitted that the apex Court in the case of Commissioner of Central Excise, Hy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disallowing the claim of Modvat credit on HSD oil by virtue of Section 112 of the Finance Act, 2000, which is retrospective in nature, the interest cannot be demanded. 8. Sri S.P. Kesharwani, learned Senior Standing Counsel, submitted that in the present case the demand has been confirmed by the adjudicating authority in respect of the Modvat credit availed on the HSD oil which was not admissible according to the adjudicating authority. Therefore, the demand was within the limitation provided under Section 11A of the Act. He submitted that the validity of the provision can be questioned only on two grounds, viz. (1) lack of legislative competence and (2) violation of fundamental rules. Reliance is placed on the Supreme Court decision in the case of Greater Bombay Coop. Bank Ltd. v. United Yarn Tex (P) Ltd. and Others reported in (2007) 6 SCC 236 (para 82). In the present case the petitioner has failed to establish both the conditions. He further submitted that the petitioner has not laid down the factual foundation for assailing the validity of the statute. Therefore, the contention of the petitioner about the validity of Section 112 is liable to be rejected. He submitted that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, and also to disallow such credit to be utilised for payment of any kind of duty on any excisable goods shall be deemed to be, and to always have been, for all purposes, as validly and effectively taken or done, as if the provisions of sub-section (1) had been in force at all material times and, accordingly, notwithstanding anything contained in any judgment, decree or order of any court, tribunal or other authority, - (a) no suit or other proceedings shall be maintained or continued in any court, tribunal or other authority for allowing the credit of the duly paid on high speed diesel oil and no enforcement shall be made by any court, tribunal or other authority of any decree or order allowing such credit of duty as if the provisions of sub-section (1) had been in force at all material times; (b) recovery shall be made of all the credit of duty, which have been taken or utilised but which would not have been allowed to be taken or utilised, if the provisions of sub-section (1) had been in force at all material times, within a period of thirty days from the date on which the Finance Act, 2000 receives the assent of the President and in the event of non-payment of such credit ..... 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