TMI Blog2013 (6) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 11D of the Act was absolutely illegal and is liable to be quashed, the same has rightly been quashed by the learned Tribunal. - Decided against revenue. - D.B. CENTRAL EXCISE APPEAL NO. 95/2009 - - - Dated:- 22-5-2013 - Narendra Kumar Jain And Mahendra Maheshwari,JJ. For the Petitioner : Mr. Ankur Mathur on behalf of Mr. V. K. Mathur For the Respondent : Mr. Sheetal Kumbhat on behalf of Mr. Suresh Kumbhat ORDER Briefly stated the facts of the case are that a show cause notice dated 17th January, 2006 (Annex.1) was issued to respondent by Assessing Officer i.e. Dy. Commissioner, Central Excise to the effect that as to why the amount of Rs.29,342/- should not be recovered from it along with interest under the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty. 5. Submission of learned counsel for the appellant is that although the amount of Central Excise recovered by assessee has been deposited, but mode of deposit was not correct. The amount so far collected should have been deposited in cash, whereas the same was deposited by way of debiting the same from CENVAT credit account. He therefore, submitted that the deposit of amount by respondent was in contravention of Section 11-D of the Act. Therefore, the Assessing Officer was right in passing an order of recovery. He submitted that learned Tribunal has committed an illegality in setting aside the order passed by the Assessing Officer as well as appellate authority. 6. Learned counsel for the respondent defended the impugned order p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee, where article was NIL rate of duty deposited by way of debiting the same from CENVAT credit account is correct or not? 10. There is no dispute in the present case between the parties that amount in question has already been deposited with the Department. The objection of department is based on Section 11D of the Act. The said provision has been considered in detail by the larger Bench of the Tribunal in Unison Metals Ltd. vs. Commissioner of Central Excise, Ahmedabad-I (supra). 11. In this connection, it is relevant to refer the Circular dated 7th August, 2002, which is reproduced as under:- Circular No.651/42/2002-CX F.No. 267/72/96-CX-8 Government of India Ministry of Finance Department of Revenue Central Board of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disputed that the Circular is applicable in the present case and it was not considered by the Assessing Officer as well as the appellate authority. As per this circular, the provisions of Section 11D are not attracted, where amount of central excise duty has been deposited by way of debiting the same from Canvat credit account. 13. We have also examined Section 11D of the Act and we find that recovery order issued by the Department on the basis of Section 11D of the Act was absolutely illegal and is liable to be quashed, the same has rightly been quashed by the learned Tribunal. 14. In view of above discussion, we find no merit in this appeal. The question framed in this appeal is decided in favour of the assessee and against the depar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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