TMI Blog2008 (9) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... 2235 of 2007 - - - Dated:- 11-9-2008 - Adarsh Kumar Goel and Ajay Tewari, JJ. Shri Balbir Singh, Advocate, for the petitioner. Shri Kamal Sehgal, Advocate, for the respondents. [Judgment per : Ajay Tewari, J.]. - This order shall dispose of CWP Nos.2235 and 3358 of 2007 as common questions of law and facts are involved therein. For the sake of convenience, facts are being extracted from CWP No.2235 of 2007. 2. The petitioner is engaged in the manufacture and export of cotton yarn and woven fabrics, both for domestic market as well as for export and the excise duty leviable thereon was 16%. By a notification No.29/2004-CE, dated 9.7.2004 the petitioner was granted relief in the excise duty payable in so much as the same w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e claim. By order dated 10.6.2005 the Assistant Commissioner allowed the petitioner a rebate of excise duty of Rs.7,00,161/- in cash (since the same was deposited by actual credit) and with regard to the remaining amount of Rs.24,90,176/- which was debited by the petitioner from its cenvat credit of capital goods, the same was allowed to be re-credited to the petitioner in its cenvat account. 5. Aggrieved by the partial sanction of rebate in cash, the petitioner filed an appeal before the Commissioner (Appeals) who allowed the same in view of the decision of CESTAT in the case of Bharat Chemicals v. CCE Thane reported as 2004 (170) E.L.T. 568, and on the strength of Circular No.687/3/2003-CX, dated 3.1.2003 which lays down as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Health Care Ltd - 2003(151)E.L.T. 5, Hico Products Ltd v. Collector of Central Excise - 1994 (71) E.L.T. 339, Priya Blue Industries Ltd v. Commissioner of Customs (Preventive)- 2004 (172) E.L.T.145, and Collector of Central Excise, Kanpur v. Flock (India) Pvt. Ltd - 2000 (120) E.L.T. 285. On the strength of these judgments he has argued that once it is admitted that the petitioner was entitled to the rebate of duty the said rebate was liable to be allowed as cash and it was not open to the respondents to refund some part of it by way of cenvat account. 8. In reply, learned counsel for the respondents has defended the orders of the government and states that the present writ petition be dismissed. 9. After giving our anx ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a particular manner. 11. In C.C.E, Chandigarh v. Smithkline Beecham Consumer Health Care Ltd (supra) it was held that a benefit available to the assessee to claim could not be thrust upon him against his wishes. The said case dealt with the distinction of short levy and lesser collection of duty because of adjustment and in that context it was held that Section 11A of the Central Excise Act, 1944 which dealt with recovery of duties not levied or not paid or short levied or short paid or erroneously refunded- would not be applicable. In our opinion, the said judgment has no application to the present case. 12. In the case of Hico Products Ltd v. Collector of Central Excise (supra), the dispute was whether the products of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und that since no appeal was filed against the order of assessment and the assessment order became final, the claim for refund could not be filed since a refund claim is not an appeal against the order of assessment. On the strength of this, learned counsel for the petitioner has sought to argue that its action of paying higher duty was reflected in the assessment order and, thus, in the absence of any appeal against the said assessment order, no fault could be found with the action of deposit of 16% duty by the petitioner. In our view the said case has no applicability to the present controversy because the context is entirely different, since in the present case there was no occasion for the Assessing Officer to force the petitioner to ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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