TMI Blog2013 (11) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... o avail of Cenvat credit in accordance with the Rules. In the light of the amendment in the statutory provisions, the order dated 8-6-2005 passed by the Commissioner (Appeals) as well as the orders in-original dated 20-12-2004 passed by the adjudicating authority are clearly contrary to the statutory provisions and cannot sustained –, the refund claims of the petitioners shall stand restored to the file of the adjudicating authority - Decided in favour of Petitioner. - Special Civil Application No. 18992 of 2005 - - - Dated:- 19-4-2011 - Harsha Devani and R.M. Chhaya, JJ. Shri Paresh M. Dave, for the Petitioner. Shri R.J. Oza, for the Respondent. JUDGMENT By this petition under Article 226 of the Constitution of India, the petitioners have challenged the order-in-appeal No. 376-377/2005, dated 8-6-2005, (Annexure I to the petition) and the Orders-in-Original No. 947/Ref/2004 and No. 948/Ref/2004 both dated 20-12-2005 passed by the Commissioner of Central Excise, Ahmedabad (Annexure G ) to the petition collectively). 2. The facts of the case as appearing in the petition are that the petitioner, a private limited company, is engaged in the business of manufa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rod was made thinner and the product was finished a little better and, therefore, the decision of the Tribunal holding that MS wire obtained from MS rod was not liable to excise duty was correct. Despite the aforesaid decision of the Supreme Court, the manufacturers like the petitioner were paying excise duties on SS wires and the Revenue authorities were also collecting such duties without any objection. 4. Vide circular dated 29-5-2003, the Central Board of Excise Customs withdrew the previous Circular dated 16-2-2001 and informed the trade that the review petitions filed by the Excise Department in cases decided by the Supreme Court in Collector of Central Excise v. Technoweld Industries (supra), were dismissed. 5. In view of the above position, a show cause notice dated 28-8-2003 came to be issued to the petitioner company and ultimately, after hearing the petitioners, an order-in-original dated 19-9-2003 came to be passed by the third respondent holding that drawing of SS wire from SS rods by the petitioner company does not amount to manufacture with effect from 29-5-2003 in view of the judgment of the Supreme Court in the case of Commissioner of Central Excise v. Te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 2,62,24,156/- taken by the petitioner company during the period 29-5-2003 to 8-11-2003 with proposals for penalty and interest on the ground that the petitioner company could not have taken credit of duties paid on raw materials when its activities did not constitute manufacture . The petitioners filed a reply to the above show cause notice vide letter dated 4-6-2004, but this show cause notice was kept in abeyance by the Commissioner of Central Excise-Ill, Ahmedabad in view of the pendency of the above referred petition before this Hon ble Court involving the same issue. 9. During the above referred period, the petitioner company was clearing SS wires on payment of excise duties at appropriate leviable rates. The petitioner company was also availing credit of duties paid on SS wire rods by virtue of the interim orders passed by this Court in the above referred matter. The Cenvat Credit Rules provide for cash refund of credit of duties paid on inputs used in or in relation to the manufacture of final products exported under bond if such credit cannot be utilized for paying duties on any other goods cleared for home consumption on payment of duty or cleared for export on paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng on behalf of the petitioners invited attention to the provisions of the Taxation Laws (Amendment) Act, 2006 (Amendment of 2006) and more particularly, to Section 39 thereof whereby Rule 16 of the Central Excise Rules, 2002 (the Rules) has been amended, to the effect that for the purpose of the Rules, wire drawing units which cleared the goods on payment of an amount equal to duty at the rate applicable to drawn wire on the date of removal were included in the definition of assessee and the amount paid on the goods brought to the factory of such assessee was allowed as Cenvat credit as if it was duty paid by the assessee who removed the goods. It was submitted that in the light of the amendment in Rule 16 of the Rules the petitioner is entitled to take Cenvat credit of the duty paid on the goods brought to the factory of the petitioner. 11. Attention was also invited to the fact that the said Amendment of 2006 has been made effective for the period from 29-5-2003 to 8-7-2004. It was submitted that in the light of the Amendment of 2006, the decision of the Supreme Court would no longer be applicable to the facts of the present case inasmuch as, the legislature by the amendment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 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. (3) For the purposes of sub-section (1), the Central Government shall have and shall be deemed to have the power to make rules with retrospective effect as if the Central Government had the power to make rules under section 37 of the Central Excise Act, retrospectively, at all material times. Explanation. - For the removal of doubts, it is hereby declared that no act or omission on the part of any person shall be punishable as an offence, which would not have been so punishable if this section had not come into force. 15. By virtue of the aforesaid provisions, Rule 16 of the Rules has been amended retrospectively in the manner as specified in column (2) of the Schedule for the period specified in column (3) of that Schedule against the rule specified in column (1) of that Schedule. Sub-section (2) of section 39 says that notwithstanding anything contained in any judgment, decree or order of any court, tribunal or other authority, any action taken or anything done or purported to have been taken or done, at any time during the period comm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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