TMI Blog2017 (5) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... d vide order dated 17.10.2005 and the CESTAT upheld the same vide order dated 08.03.2017. When it is so, then the subsequent proceedings by issuing fresh notice on 01.02.2007 are not in good taste especially when the refund of ₹ 82,698/- + ₹ 1291/- (interest) was denied which is allowable even on merits - appeal allowed - decided in favor of appellant-assessee. - Excise Appeal Nos.586-587 of 2008 - A/52605-52606/2017-EX[DB] - Dated:- 14-3-2017 - Mr. (Dr.) Satish Chandra, President And Mr. Ashok K. Arya, Member (Technical) (Rep by Sh. Hemant Bajaj, Adv.) for the Appellants (Rep. by Sh. H.C. Saini, DR) for the Appellant Per (Dr.) Satish Chandra : Both the present appeals are filed against the Order-in-A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority vide its order dated 03.02.2006. Being aggrieved, the Department has filed an appeal before the Commissioner (Appeals) who has rejected the appeal vide order dated 23.05.2007. Being aggrieved, the Department has filed the appeal before this Tribunal which was rejected vide order dated 08.03.2017. With this complicated chequered history, a fresh show cause notice was issued on 01.02.2007 for the period under consideration wherein it was mentioned that the refund was granted erroneously. The same was confirmed by the adjudicating authority as well as by the Commissioner (Appeals). Being aggrieved, the assessee-Appellants have knocked the door of this Tribunal. 3. With this background, we have heard Shri Hemant Bajaj, learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication. The reason is clear that there is no provision for reversal of a Cenvat credit. This view of ours is fortified by a decision of the Supreme Court in Dai Ichi Karkaria s case (supra), wherein the Supreme Court, after considering the scheme of the Cenvat Credit Rules, held: It is clear from these Rules, as we read them, that a manufacturer obtains credit for the Excise duty paid on raw material to be used by him in the production of an excisable product immediately it makes the requisite declaration and obtains an acknowledgement thereof. It is entitled to use the credit at any time thereafter when making payment of Excise duty on the excisable product. There is no provision in the Rules which provides for a reversal of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ees with the above view of Hon ble Uttrakhand High Court in the case of Apco Farm Ltd. (supra). The Hon ble Madras High Court in the said decision holds that the credit legally taken during relevant time is not liable to be reversed in the circumstances prevalent in the present case. The CESTAT, Delhi in the case of Shri Krishna Paper Mills Industries Ltd. (supra) also supports the stand of the appellant assessee. The CESTAT, Delhi in the said case observes as under: 16. Further, our attention has been invited to the decision rendered by the Division Bench of High Court of Karnataka in CEA No. 82 of 2007 [2001 (268) E.L.T. 46 (Kar.)], titled as Commission of Central Excise v. TAFE Limited (Tractor Division), wherein it has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsel has also relied upon the ratio of the Larger Bench laid down in the case of HMT Vs CCE, Panchkula, 2008 (232) ELT 217 (Tri.-LB), wherein the ratio laid down by the Hon ble Supreme Court in the case of Albert David Ltd. Vs Commissioner, 2003 (151) ELT 443 (T) , was discussed and finally it was observed that, Cenvat Credit which was validly availed at the time of receipt of the inputs for the manufacture of the final products, on which excise duty was payable, but subsequently utilized for the manufacture of the same final product which became exempted from payment of excise duty pursuant to a subsequent notification, was not liable to be reversed under Rule 6(1) of the Cenvat Credit Rules, 2002. 5. In the light of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
