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2015 (9) TMI 1378 - CESTAT AHMEDABAD

2015 (9) TMI 1378 - CESTAT AHMEDABAD - TMI - Denial of refund claim - CENVAT Credit - whether or not appellant is entitled to refund of an amount paid by the appellant representing CENVAT credit availed on inputs used in the manufacture of finished goods lost in fire accident when appellant has recovered the said amount from the Insurance Company - Held that:- The final order passed by Hon'ble Gujarat High Court [2013 (4) TMI 532 - GUJARAT HIGH COURT] held that above amendment carried out in Rul .....

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hri S.K. Shukla, Authorised Representative ORDER Per : Mr. H.K. Thakur; This appeal has been filed by the appellant with respect to OIA No. KRS/419/VAPI/2009 dated 30.11.2009 issued on 04.12.2009. 2. The issue involved in the appeal is whether or not appellant is entitled to refund of an amount paid by the appellant representing CENVAT credit availed on inputs used in the manufacture of finished goods lost in fire accident when appellant has recovered the said amount from the Insurance Company. .....

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n the case law of Karnataka High Court in the case of CCE, Bangalore vs. Tata Advanced Materials Limited [2011 (271) ELT 62 (Kar.)] where it has been held that credit taken with respect to capital goods destroyed in fire accident on which CENVAT credit was availed, was proper. He further relies upon the case law of CCE, Ahmedabad vs. Intas Pharmaceuticals Limited [2013 (289) ELT 256 (Guj.)] where a similar view has been taken by the jurisdictional Gujarat High Court. 4. Shri S.K. Shukla (AR) on .....

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estroyed in fire accident when the same amount is recovered from the Insurance Company. Both sides have relied upon certain case laws which are contrary to each other. These judgments are delivered by the Hon'ble High Court of Punjab & Haryana in the case of CCE, Chandigarh vs. Aagosh Poly Foam (supra) and Karnataka High Court in the case of CCE, Bangalore vs. Tata Advanced Materials Limited (supra) and the Hon'ble High Court of Gujarat in the case of CCE, Ahmedabad vs. Intas Pharmac .....

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lled or if utilised has to be paid for. This is not the case of the revenue. In the instant case, when the assessee purchased the capital goods and when he has paid the excise duty on them, in law, he is entitled to get the credit on the duty paid while clearing the finished products from his factory. Accordingly, he utilised the cenvat credit and cleared the finished products. It is about three years after such payment, the capital goods were destroyed in fire. As the assessee had insured the s .....

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ay the said amount. The assessee has paid the premium and covered the risk of this capital goods and when the goods were destroyed in terms of the insurance policy, the Insurance Company has compensated the assessee. It is not a case of double payment as contended by the department. At any rate, the Excise Department has no say in the instant case as held by the Apex Court. In that view of the matter, the substantial questions of law framed in this appeal are answered in favour of the assessee a .....

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ontention of the assessee that in terms of Rule 3 of Cenvat Credit Rules, the right of the respondent to avail and retain Cenvat Credit was crystallized the moment the raw material or the input was used in manufacturing of a final product which was neither exempt from duty nor carried nil rate of duty would also require a closer scrutiny. The referring Division Bench further noted the additional contention of the assessee that sub-rule 5(C) of Rule 3 of Cenvat Credit Rules having been introduced .....

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Excise Rules, the Cenvat Credit taken on the inputs used in the manufacture or production of said goods should be reversed. Thus, according to the referring division Bench, at least from 7th September, 2007, the legislative position has become amply clear. However, the referring Division Bench also took note of the fact that whether it could be said that prior to 7th September, 2007, in absence of sub-rule 5(C) to Rule 3, there was any such legislative intent, is a matter to be probed into. 6. T .....

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awfully taken by a manufacturer. Therefore, the credit accrued at the moment the raw material or the input was used in manufacturing of a final product which was neither exempt from duty nor carried nil rate of duty. Such being the provision, as it stood in the Cenvat Credit Rules prior to September 7, 2007, there is no scope of application of equitable doctrine against the assessee and in favour of the Revenue on the ground that it will amount to conferring of double benefit. The moment sub-rul .....

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ent is retrospective or clarificatory in nature : We may next consider whether the 1992 and 1994 Amendments to the Rules were retrospective in operation. In Zile Singh v. State of Haryana this Court held: (SCC p. 8, para 13) 13. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. But the rule in general is applicable where the object of the statute is to affect vested r .....

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e Port Authorities, by virtue of the Amendment Rules and that such power was given to levy fees/charges retrospectively. The contention has been that the power to levy fees/charges existed ever since the Rules came into force on 5-4-1984 and that position was merely clarified by the Amendment Rules in 1992 and 1994. 35. We have already held that the Amendment Rules of 1992 and 1994 are not clarificatory, but are provisions investing the Port Authorities with the power to levy and collect charges .....

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