TMI Blog2004 (6) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... ing appropriate notification under the Central Excise Rules, 1944 being no. 27 of 1987 conferred money credit benefit to the manufacturers of vanaspati at the rates mentioned in the notification varying between Rs. 3250/ and Rs. 5000/- depending upon the nature of minor oils used in the process of manufacture. The notification also indicated the terms and conditions for utilization of such benefit. Although the notification no. 27 of 1987 was abolished on August 25, 1989, the selfsame benefit was restored by issue of a fresh notification dated October 11, 1989 bearing no. 45 of 1989. An amount of Rs. 17,32,78,689/ was accumulated to the credit of the petitioner no. 1 in terms of those notifications for the use of minor oils in the process of manufacture as on July 22, 1996. (d) According to the said money credit scheme, a manufacturer is entitled to utilize such credit for an amount not exceeding Rs. 1000/- per MT at any time following the succeeding month in which such money credit accrued. However, from July 23, 1996, the excise duty on vanaspati was abolished and consequently, the petitioner no. 1 was not in a position to utilize such benefit towards the payment of exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents that in the scheme itself there being no provision for refund by cash, this court cannot pass any direction upon the respondents to do anything not borne out by the scheme. At this stage, it will not be out of place to refer to a decision of Sengupta, J, in the case of Kusum Products Limited v. Union of India reported in 2003 (157) E.L.T. 258, where His Lordship in similar circumstances refused to give relief of refund by cash holding that the scheme did not permit refund of the money-credit by cash in lieu of adjustment towards duty payable by the manufacturer to the extent indicated in the scheme. I respectfully agree with the said decision and thus, hold that the petitioner no. 1 is not entitled to the relief of cash-refund of the accrued benefit under the scheme. The first writ application is thus disposed of with the above observation. 5.In the other writ application, two questions are involved. First, after the abolition of the rules containing the money-credit scheme, whether the petitioner no. 1 is entitled to adjust the money-credit earlier accrued in its favour towards duty payable for a subsequent period and secondly, whether a manufacturer is entitled to adjust m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ria in this connection also relies upon the decision of the Supreme Court in the case of Samtel India Limited v. Commissioner of Central Excise reported in 2003 (155) E.L.T. 14 where the Apex Court has reiterated the aforesaid view. 8.As regard the other point, whether the petitioner no. 1 is entitled to adjust credit accrued by virtue of its production at the unit at New Alipore towards the duty payable for the goods manufactured at the new unit at Bangannagar, Mr. Bajoria contends that under the scheme it is the manufacturer who has been given such benefit and not any unit of the manufacturer, and as such it is immaterial whether the petitioner no. 1 intends to adjust the benefit accrued for the production in a particular unit towards excise duty payable for the production in a different unit. 9.Mr. Banerjee, the learned Counsel appearing on behalf of the respondents has opposed the aforesaid contentions put forward by Mr. Bajoria and has contended that the question of giving the benefit of the money-credit arises only when the scheme under which such benefit is available is in existence. Mr. Banerjee contends that the moment the scheme is abolished, the petitioner no. 1 is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the rule, notification or order, as the case may be, has not been amended, repealed, superseded or rescinded."12.In view of the aforesaid provisions contained in Section 38A of the Act, I find substance in the contention of Mr. Bajoria that by reason of the omission of the rule, the right of the petitioner no. 1 to have money-credit in terms of the notification under the rule cannot lapse. As pointed out by the Supreme Court in the case of Tungabhadra Industries Limited (supra), Central Excise Act does not permit divestment of any accrued right of a person acquired by virtue of any of the provisions contained in the Act, rules, notification, order, etc. Moreover it is rightly pointed out by Mr. Bajoria that even in cases, where by specific enactment a vested right is taken away in violation of the provisions contained in Section 38A of the Act, the Apex Court has unhesitatingly preserved such accrued right. [see the cases of Samtel India Ltd. and Eicher Motors Ltd. (supra)]. 13.In this case, there is no dispute t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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