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TMI Blog2023 (5) TMI 516X X X X Extracts X X X X X X X X Extracts X X X X ..... 5,074/- which was paid by the unit through account current (PLA) in terms of the said Notification. The said Notification was amended vide Section 153 of the Finance Act, 2003 (Clause 145 of the Finance Bill 2003) retrospectively from 08.07.1999 to 22.12.2002 so as to provide that the refund shall not exceed the duty paid, less the amount of CENVAT Credit availed of, in respect of duty paid on the inputs used in or in relation to the manufacture of the goods cleared under the said Notification. The sub-Excise clause 4 of clause 145 of the Finance Bill also provide that recovery shall be made within a period of 30 days from the date on which the Finance Bill 2003 received the assent of the President and in the event of non-payment, interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants. Hence the Appellants had no chance to present the actual factual details before the Original authority to arrive at the calculation. Hence it was necessary for the lower authority to ensure that the calculations are properly made in terms of the retrospectively amended law as upheld by the Hon'ble Gauhati High Court before confirming the demands. Since the lower appellate authority has passed a blank order without looking into the factual details of each Appeal we have no option, but to set aside the impugned order and remand the matter to the original authority for fresh decision. The Deputy Commissioner, Jorhat Division vide de novo order No.DIB/JOR/CEX/05/2008 dated 29.01.2008 observed and passed the following order:- I have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.05 of the Gauhati High Court, upholding the constitutional validity of the retrospective amendment vide section 153 of the Finance Act, 2003, is to be followed. The Hon'ble CESTAT has specifically held that credit availed and lying unutilized is required to be demanded. 4. The said unit in their reply dated 05.10.07 and during personal hearing held on 17.12.07 has broadly contended that demand in terms of section 153 of the Finance Act, 2003 is illegal, is not applicable in their case or unutilized CENVAT credit can not be recovered. They have also contended that points raised by them in their reply were not argued before any judicial or quasi-judicial forum. 5. I find that the points raised by the unit have no relevance so far as pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent case bears the same question of law as well as facts and circumstances and hence the said decision is squarely applicable to their case. (iii) The exemption notification ceased to have any effect on Tea Industry on withdrawal of Basis Excise duty on Tea w.e.f.28/02/2003. (iv) There was a void between the date of giving retrospective effect and the date of applicability of the notification. The retrospective effect can only be effected between two live ends of a legal process and it can never bind two dead ends. (v) The Hon'ble Gauhati High Court vide its order dated 30.06.2005 in UOI vs. Assam Brook Ltd. observed that extending the operation of the Exemption Notification beyond 28/02/2003 is not possible for the companies whose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the event of non payment of duty, 15% interest shall be payable from the date immediately after the expiry of the period of 30 days. Accordingly, the impugned order confirmed the demand of 5,34,865/- being the CENVAT credit lying unutilized as on 28/02/2003. It is the case of the Appellant that this demand has gone beyond what is envisaged in the retrospective amendment. The Appellant stated that the retrospective amendment only validates recovery of CENVAT Credit availed between 08/07/1999 to 22/12/2002. The demand in this case has gone beyond 22/12/2002 and sought recovery of CENVAT Credit lying unutilzed as on 28/02/2003. They cited the decision of this Bench in the case of Hunwal Tea Estate Vs Commissioner of central excise, Dibruga ..... X X X X Extracts X X X X X X X X Extracts X X X X
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