TMI Blog2023 (5) TMI 516X X X X Extracts X X X X X X X X Extracts X X X X ..... iod 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. 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, Dibrugarh [ 2018 (7) TMI 1356 - CESTAT KOLKATA ] where under the same facts and circumstances, the Tribunal set aside the demand and allowed their appeal. The aforesaid decision in the case of Hunwal Tea Estate cited by the Appellant is squarely applicable to the facts of this case. The retrospective amendment has validated recovery of CENVAT credit availed for the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Finance Bill 2003 received the assent of the President and in the event of non-payment, interest @ 15% shall be payable. The Finance Bill 2003 received the assent of the President on 13.05.2003. The said Notification was also amended vide Notification No.61/2002-CE dated 23.12.2002 to provide that refund should not exceed the amount of duty paid, less the amount of CENVAT Credit availed of, in respect of the duty paid on the inputs used in or in relation to the manufacture of the goods cleared under the Notification No.33/99-CE dated 08.07.1999. In terms of the above amendment an order was passed by the Ld. Commissioner of Central Excise, Jorhat requiring the Appellant to pay amount of Rs.5,34,865/- within 30 days w.e.f. 14.05.2003 as unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 carefully gone through the case records and found that the order dated 04.06.2003 was passed by the Assistant Commissioner, Central excise, Jorhat, in terms of the Section 153 of the Finance Act, 2003 requiring M/s. Gatoonga Tea Estate to pay an amount of Rs.5,34,865.00, which was unutilized balance of CENVAT credit on inputs, within 30 days from 14.05.2003 and interest @ 15% p a on failure. The calculation sheet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 present adjudication is concerned as the Hon ble CESTAT in its order has held that unutilized credit is recoverable and remanded the case for fresh decision after affording reasonable opportunity of hearing in regard to the calculation of the demanded amount. 6. However, I find that they have not come up with any revised calculation of the unutilized credit. In fact, the calculation for arriving at the demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 basic excise duty was abolished. The liability of the retrospective effect shall be operational only for those who were still within the operational effect of the Exemption Notification as on 13/05/2003, but not for those who ceased to be within the same on 28/02/2003 or in stricter sense the retrospective effect on 22/12/2002 itself. (vi) The demand is violative of Entry 84 of List 1 of Schedul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, Dibrugarh where under the same facts and circumstances, the Tribunal set aside the demand and allowed their appeal. We find that the aforesaid decision in the case of Hunwal Tea Estate cited by the Appellant is squarely applicable to the facts of this case. The retrospective amendment has validated recovery of CENVAT credit availed for the period from 08/07/99 to 22/12/2002 only. Whereas, the dem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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