TMI Blog2019 (5) TMI 969X X X X Extracts X X X X X X X X Extracts X X X X ..... n the date of their publication in the Official Gazette. It is apparent from the Notification that it was published in the Gazette on 07 July, 2009 itself. The bare perusal makes it clear that the intention of legislature while incorporating the amendments in Cenvat Credit Rules, 2004 was for the Notification to take effect from the date of it being officially gazetted. The Circular dated 08 July, 2010 as relied upon by the Department to give this Notification a retrospective effect is not binding and in fact cannot be looked into in view of the statute itself. The Order under challenge holding the Notification to apply retrospectively is hereby set aside - appeal allowed - decided in favor of appellant. - Excise Appeal No. 51261 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017. Still being aggrieved, the appellant is before this Tribunal. 2. I have heard Ms. Asmita Nayak, learned Counsel for the appellant and Mr. P.R. Gupta, learned Authorised Representative for the Department. 3. It is submitted on behalf of the appellant that the impugned articles were very much the inputs for the appellants as per Explanation 2 to Rule 2k of Cenvat Credit Rules, 2004 as it existed during the impugned period. It is submitted that the Department has denied credit on these inputs on the basis of the amendment to the said Explanation 2 of Rule 2k as was brought vide Notification No. 16/2009 dated 07 July, 2009. It is impressed upon that a Notification cannot be given retrospective effect. Lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o merely clarify coverage under input and no indication that amendment made to change scope of Cenvat Credit Rules, 2004 or to introduce new provision General rule making power under Section 37(1) of Central Excise Act, 1944 not used in excess of specific powers under Section 37(2) (xvia) ibid to grant credit for earlier period Amendment being clarificatory, held as retrospectively applicable Section 37 ibid Rules 2(a) and 2(k) of Cenvat Credit Rules, 2004. [paras 6, 30, 31, 32, 33, 34, 35, 36] 4.1 It is mentioned that though the said decision of Larger Bench has been set aside by the Hon ble High Court of Chhattisgarh but Department is already in Appeal before Hon ble Supreme Court where leave has already been g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntroversy in the impugned Appeal remains is as to whether Notification No. 16/2009 dated 07 July, 2009 can be made applicable retrospectively, the period for demand in the impugned Appeal being from May 2007 to June 2009, i.e., prior the impugned Notification. 6. For the purpose, the Notification has been looked into. Clause 1(1) of the Notification reads that the amended Rules shall be called Cenvat Credit (Amendment) Rules, 2009. Rule 1(2) reads that these Rules shall come into force on the date of their publication in the Official Gazette. It is apparent from the Notification that it was published in the Gazette on 07 July, 2009 itself. The bare perusal, as above, makes it clear that the intention of legislature while inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.1 The Circular dated 08 July, 2010 as relied upon by the Department to give this Notification a retrospective effect is not binding and in fact cannot be looked into in view of the statute itself. 7. Though there has been a decision of Larger Bench of this Tribunal in Vandana Global Ltd. (supra) case itself as relied upon by the Department but as already observed above, the said decision has already been set aside. Though an Appeal thereof has been admitted before the Hon ble Supreme Court but no stay to the decision of Hon ble High Court of Chhattisgarh has been announced. Till any further decision by the Hon ble Apex Court, the decision of the High Court shall have the binding effect. In view of the entire above di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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