9911796707
TMI Blog2013 (8) TMI 646X X X X Extracts X X X X X X X X Extracts X X X X ..... ersed the Cenvat Credit availed by them during the period from November, 1999 to April, 2000, June 1999 to August, 2000 and June, 2001 to August, 2001 which are the three demands covered in the order cited above. He submits that it is the settled law that when goods are cleared under Chapter-X procedure by availing exemption notification without duty payment of such clearances cannot be considered as totally exempted clearances. Therefore, the requirement of payment of 8% of the amount required as per Rule 57(C)/57(CC) of the Central Excise Rules, 1944 does not arise. For this purpose he relies upon the decision of the Hon'ble Supreme Court in the case of Commissioner, Central Excise vs. SRF Ltd., decided on 1.3.2007 and in the case of Esco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid by the assessee in terms of Rule 57CC could be recovered by means of a notice issued under Rule 57 I. 2. I have heard both sides. 3. The credit was taken in 1999 and when there were no specific provisions in law for recovery of the amount under Rule 57CC. The reliance by the counsel for the appellant on the decision of this Tribunal in Pushpam Forgings vs. CCE 2002 (149) ELT 490 holding that the amount payable under Rule 57 CC is neither duty nor credit and therefore notice cannot be issued under 11A or under Rule 57 I. The Tribunal has gone on to say, relying upon the decision of the Madras High Court in Etermit Everest Ltd. vs. Union of India 1977 (89) ELT 28 that the recovery is to be made as and when su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid but which would have been paid as if the amendment made by sub-section (1) had been in force at all material times, within a period of thirty days from the day on which the Finance Bill, 2005 receives the assent of the President. As per Section 83 (2) (2) Any action taken or anything done or purported to have been taken or done at any time during the period commencing on and from the 1st day of July and ending with the 28th day of February, 2002 under the rule as amended by sub-section (1), shall be deemed to be, and always to have been, for all purposes, as validly and effectively taken or done as if the amendment made by sub-section (1) had been in force at all material times, and accordingly, notwithstandi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been invoked or not in that case. Therefore, discussion of the background and the detail would show that all the three demands have been treated alike by learned Commissioner (A) who has allowed the appeals only on limitation without going into the merits at all. 7. Even in first round of litigation which reached the Tribunal in respect of two demands for the earlier periods, the assessee was before the Tribunal only on one ground namely there was no recovery mechanism or provision for recovery of amount liable to be paid under Rule 57 C/57(CC) of the Central Excise Rules, 1944. They were not on the issue of merit at all. 8. In respect of demand up to April, 2000, the matter attained finality with the Tribunal's Order dated 22.10.2004. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he fact that the purpose behind the dispute redressal mechanism is rendering justice. But the question that arises before us is whether the. Tribunal is required to come to the rescue of an assessee who over the period of 13 years did not take note of or considered whether there was a case on merit or not and was fighting the case on a technical ground that there was no recovery mechanism and there was never a whisper about merits. Even when the impugned order was passed the only submission made by the assessee was that the show-cause notice was time barred which has been considered and discussed while passing the order. In fact, another fact to be noted is that the amounts were reversed on 17.11.2001 i.e. after more than 10 to 12 years. It ..... X X X X Extracts X X X X X X X X Extracts X X X X
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