TMI Blog2018 (11) TMI 1370X X X X Extracts X X X X X X X X Extracts X X X X ..... ICAL MEMBER Shri S. Mukhopadhyay, Supdt. (AR) for the Revenue (s) Shri Ravi Raghavan, Adv. Shri H.Shukla, C.A. for the Respondent (s) ORDER The issue in these appeals are identical and accordingly, the same are disposed off by this common order. 2. The present appeals have been filed by the Revenue against the impugned order on the ground that for the recovery made under Section 153 of the Finance Act, 2003, payment through Cenvat Credit account is not correct and the respondents are, therefore, not entitled for making payment of demanded amount through Cenvat Credit Account. 3. The issue involved in this case is that the appellant has availed exemption under Notification No.33/99-CE dated 08.07.1999. Consequent upon the retrospective amendment of the said Notification brought about vide Section 153 of the Finance Act, 2003, an amount of ₹ 21,95,078/- was demanded vide Order No.03/Demand/32- 33/99/ACT/03-04 dated 05.06.2003 from the respondents being the excess refund granted to them during the period from May, 2000 to 22.12.2002 by the Appellate Revenue. The Respondent paid the amount by way of debit in their Cenvat Credit account on 09.06.2003 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he lower Adjudicating Authority permitted the reversal of refund granted earlier through Cenvat Credit Account was upheld. It is against these orders, the Revenue is in appeals before us. 5. However, the issue was agitated by some assesses before the Hon ble High Court of Guwahati and the Hon ble High Court of Guwahati vide its Order dated 21.09.2006 in the case of M/s Eminent Health Care and Cosmetics Pvt. Ltd. and Others Vs. UOI upheld the demand raised by the Department and directed the petitioner to make payments the respective amounts specified in the respective orders. Following the judgement of the Hon ble High Court, the cases before the Commissioner (Appeals), were rejected vide Order-in-Appeal No.52/CE(A)/GHY/06 dt.13.11.2006 in which the respondent was also a party. The respondent along with the other parties preferred appeal before CESTAT, who vide its Order No.S-495-509/A-1117-1131/Kol/2007 dated 31.05.2007 set aside the impugned orders and remanded the matter to the original authority for a fresh decision. The original authority held that deposit of the amount demanded in the Cenvat Credit account was legally correct and there was no dispute over the amount involve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... done by the appellants. 8. We have considered the rival submissions and perused the case records. 9. At the outset, we have seen that the issue regarding reversal of cenvat credit after retrospective amendment during the Finance Act, 2003 has been the subject matter of batch of Writ Petition before the Hon ble High Court of Guwahati. The Hon ble High Court upheld the retrospective amendment and also held that the petitioners were required to pay back the refund granted to them in excess. Therefore, the excess amount of refund availed by the appellants are required to be recovered by the Department. At this juncture, we have also considered the submissions made by the respondents wherein in a categorical direction, the respondent has stated that the respondents in these cases are not manufacturing any other than one on which, refund has been demanded in pursuance to the Notifications granting such refund. Immediately after the retrospective amendment in the year, 2003, under Section 153 of the Finance Act, 2003, the assesse reversed the credit through Cenvat Credit Account. In this case, only one product was manufactured by the appellant and even if, the refund was to be gran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77; 100/- in cash. The credit of ₹ 20/- was being kept by him in reserve to be utilized on some other goods not covered under the exemption notifications. There were also situations when the assessee was manufacturing two goods, one covered under the above notifications, and the other outside. What they were doing was to utilize the entire input tax credit for payment of duty on the product not covered under the exemption notification, and paying full duty on the exempted goods and getting back full refund. 16.3 The amendments made in December, 2002 sought to plug this loophole. These provisions are now being given retrospective effect w.e.f. 8.7.1999[clauses 142 to 145 of the Finance Bill]. Consequently, all assessments from 8.7.1999 onwards in respect of these two notifications will have to be revised to ensure that the entire credit of duty paid on the inputs used in the manufacture of the exempted final products is used only for payment of duty on final products cleared under these notifications and refund is restricted to total duty paid less the total credit in respect of the duty paid on inputs. Thus, in the above illustration, refund will be restricted t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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