9911796707
TMI Blog2018 (7) TMI 1371X X X X Extracts X X X X X X X X Extracts X X X X ..... idering the peculiar nature of the petitioner, it had been granted exemption meant for small scale industries on an unit basis. This Court is now concerned with the activities of the unit of TANSI located at Alagai Nagar, Rajapalayam, Virudhunagar District. 2. In view of the exemption granted to the S.S.I., units, the petitioner could start with a clean slate as on 1st day of April every year. The petitioner will have to pay Excise duty in once the exemption limit stood crossed. The petitioner did not experience any difficulty till the issuance of the show cause notice dated 29.03.2006. 3. The Commissioner of Central Excise, Tirunelveli, placing reliance on the Rule 57H(7) of the Central Excise Rules, 1944, Rule 9(2) of the Cenvat Credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , learned Senior Standing counsel appearing for Customs and Central Excise. 7. It is true that as against the order impugned in this Writ petition, an appeal remedy is very much available to the Writ petitioner. In fact in the earlier round, the petitioner did successfully avail the appeal remedy. The learned counsel for the petitioner submitted that the impugned order is virtually non-speaking. He drew the attention of this Court to paragraph No.23 of the impugned order in which all the decisions cited by him have been casually brushed aside by holding that they are not applicable to the instant case. This Court is therefore of the view that when the order of the Authority does not consider the contentions of the assessee, the appeal reme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material and the final product; that is to say, it is not as if credit can be taken only on a final product that is manufactured out of the particular raw material to which the credit is related. The credit may be taken against the excise duty on a final product manufactured on the very day that it becomes available." 9. This decision of the Hon'ble Supreme Court was followed by the Hon'ble Division Bench of Punjab and Haryana High Court in the decision reported in 2008 (224) E.L.T. 239(P.&H.) (Commissioner of Central Excise, Chandigarh Vs. C.N.C.Comercial Ltd.,). The said case is more or less similar to the facts obtaining on hand. In that case also, the assessee was a small scale unit that was entitled to exemption under the ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be the correct method of understanding of the position of law." 11. Therefore, this Court has to necessarily sustain the contention of the petitioner's counsel that the Writ petitioner having rightly availed the Cenvat input credit originally, cannot be called upon to reverse the same, merely because it was stepping into exemption regime. 12. There is yet another point in favour of the Writ petitioner, as rightly pointed out by the learned counsel for the petitioner, namely, the point of limitation. The petitioner is a Government undertaking. It is not in dispute that as and when the petitioner crossed the exemption limit in a given year, it began to pay excise duties. All these transactions have been periodically cleared and are w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - "25. In the absence of any appeal filed by the department on the finding, relating to alleged clandestine removal of raw materials, the appellant cannot be put in a worse position, in their own appeal, and in such circumstances, the principle of 'no reformatio in peius' would come into play, which means that a person should not be placed in a worse position, as a result of filing an appeal. It is a latin phrase, expressing the principle of procedure, according to which, using the remedy at law, should not aggravate the situation of the one who exercises it." 13. Therefore, this Court would fully concur with the contention of the petitioner's counsel that the Authority erred in levying the penalty equivalent to the amount demanded. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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