9911796707
TMI Blog2002 (8) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... t). The Petitioners had availed the Cenvat Credit for the aforesaid amount pursuant to the order passed by the Deputy Commissioner, Central Excise, Division 'E', Mumbai on 22nd September, 2000 and, therefore, it is the contention of the Petitioners that without challenging the order of the Deputy Commissioner of Central Excise, Mumbai dated 22nd September, 2000 it is not open to initiate the penal proceedings against the Petitioners and, therefore, the impugned show cause notice is liable to be quashed and set aside. 2.Ordinarily, we would not have taken up the onerous responsibility of adjudicating the show cause notice on our self, but in view of the facts of this case where utilisation of the credit is pursuant to an order dated 22nd Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on payment of excise duty and the amount credited under the Modvat account remained credited in their account. On 12th August, 1998 the Petitioners stopped repacking activities at the Mazgaon unit and transferred their repacking activity to the Patalganga unit. Since the Modvat Credit amount lying to their credit could not be utilised till the closure of the Mazgaon unit in August, 1998, the Petitioners by their letter dated 10th May, 2000 requested the Deputy Commissioner of Central Excise, Division 'E', Mumbai either to refund the amount due to them under Modvat Credit or permit them to transfer the balance Modvat Credit to their Patalganga unit. 6.By an order dated 22nd September, 2000 the Deputy Commissioner of Central Excise, Division ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Petitioners had cleared the goods during the period from January, 1998 to March, 1998 on payment of duty without availing the Modvat Credit only at the request of the Respondents and having accepted the order passed on 22nd September, 2000 it is not open to the Respondents to contend that the Petitioners have deliberately taken credit of the unutilized amount in violation of Cenvat Rules 57AF(1) and (2) of the Central Excise Rules, 1944. 8.Mr. Shah, learned Counsel appearing on behalf of the Respondents submitted that the permission granted on 22nd September, 2000 for transfer of unutilised credit was subject to the provisions of Cenvat Rules 57AF(1) and (2) of the Central Excise Rules, 1944. It was submitted that under Rule 57AF(2) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbai instead of refunding the amount to the Petitioners through it fit and proper to permit the Petitioners to transfer the unutilised credit balance of the Mazgaon unit to the Patalganga unit. If at all the Respondents were aggrieved by the said order, it was open to them to challenge the same by adopting appropriate proceedings and it is not in dispute that the order dated 22nd September, 2000 is an appealable order. Having accepted the said order it is not open to the Respondents to issue a show cause notice and contend that the petitioners have contravened the provisions of Cenvat Rules 57AF(1) and (2) of Central Excise Rules, 1944. Even in the show cause notice, it is specifically stated that the petitioners have taken and availed Cenv ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
