TMI Blog2018 (7) TMI 1356X X X X Extracts X X X X X X X X Extracts X X X X ..... y been duly utilized and refunds made accordingly - appeal is liable to be allowed. Appeal allowed - decided in favor of appellant. - Ex/355/2008 - FO/A/76350/2018 - Dated:- 12-3-2018 - SHRI P. K. CHOUDHARY, JUDICIAL MEMBER Smt. Chandrehi Allaw (Gupta) for the Appellant (s) Shri. D. Halder, A.C. (AR) for the Respondent (s) ORDER Per Shri P. K. Choudhary : The present case relates to a second round of litigation by the Tribunal. The Tribunal, vide Final order No. S-495-509/A-1117- 1131/KOL/07 dated 31.05.2007 set aside the order of the Lower Appellate Authority and remanded the matter to the original authority for fresh decision with the following observations:- 2. The impugned order has been passed by the L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In particular, the ld. Advocate appearing on behalf of the B A Limited A/C Gatoonga Tea Estate states that the appellants submission before the Lower Appellate Authority was that the amount demanded was ₹ 8,58,029/- (Rs. Eight lakh fifty eight thousand and twenty nine only) whereas the actual amount lying unutilized was ₹ 8,20,458/- (Rupees Eight lakh twenty thousand and four hundred fifty eight only). In another case relating to M/s. Dharampal Satyapal Ltd. (Appeal No. 124-126/2007), the Ld. Advocate representing the appellants states that the entire amount of credit availed has been demanded without taking into account the fact that the said credit was utilized and the refund that has been sanctioned only represented the am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall afford a reasonable opportunity of hearing to the appellants in regard to the calculation of the demanded amounts before passing a fresh order. All the 15 appeals are allowed by way of remand. The Stay Petitions filed by the Appellants also stand disposed off. 2. In denovo adjudication, the adjudicating authority passed the following orders:- 1. M/s Hunwal Tea Estate is required to pay an amount of ₹ 3,39,441.00 in terms of Section 153 of the Finance Act, 2003. 2. M/s Hunwal Tea Estate is also required to pay interest @ 15% p.a. w.e.f. 13.06.2003 on the above amount in terms of the Section 153 (4) of the Finance Act, 2003. 3. By the impugned order, the Commissioner (Appeals) upheld the denovo adjudication order a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verable interest @ 15% P.A. shall be payable from the date immediately after the date of expire the period of 30 days. 6. The appellant was served with a coopy of order C No. V(18)(48)/ACJ/REF/2003/558 dated 04.06.2003 (hereinafter referred to as the said order) demanding recovery of CENVAT Credit of ₹ 3,39,441/- for the period from 08.10.2002 to 28.02.2003. 7. The appellant states that a large number of manufacturing units including the Appellant had challenged the vires of clause 145(I) of the Finance Bill before the Hon ble Guwahati High Court. Even though the writ petition was allowed but the Division Bench by Judgment dated 30.06.2005 was inter alia pleased to set aside the order of the Hon ble Single Judge and upheld the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for recovery of CENVAT Credit availed of in respect of duty paid on input used in or in relation to the manufacture of goods cleared under the exemption Notification up to 22.12.2002 but the period claimed by the Revenue was up to 28.02.2003 which is beyond the scope of notification. In this case it appears from Annexure 1 of the said order that: Name of the Assessees : M/s Hunuwal Tea Estate Notification availed : 33/39-CE dated 08.07.1999 Period of Availment : From 08.10.2002 to 28.02.2003 1. Duty paid through PLA : ₹ 23,31,980.00 2. Duty paid Through RG23APLII ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ventured to raise a demand beyond 22.12.2002 that must be paid within 30 days of the assent of the President to the Finance Bill failing which interest @ 15% per annum would be levied The Revenue has acted with bias in exceeding the scope of Clause 145(1) Finance Bill 2003 by making an illegal demand of recovery of Central Credit till 28.02.2003 instead of 22.12.2002 and failing to consider that the Cenvat Credit availed of in the manufacture and removal of goods have already been duly utilized and refunds made accordingly. It is therefore submitted that this Appeal is liable to be allowed. 13. In view of the above discussions, the impugned order is set aside and the appeal filed by the appellant is allowed with consequential relief, i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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