TaxTMI 
TaxTMI 
2008 (9) TMI 860
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.... justified in confirming the order of the Commissioner (Appeals) holding that Deemed Credit earned by the respondent in terms of Notification No. 6/02-C.E. (N.T.), dated 1-3-2002 had not lapsed despite the said notification having been withdrawn vide Notification No. 8/03-C.E. (N.T.) dated 1-3-2003 ? (b) Whether in the facts and circumstances of the case, the Tribunal was justified in placing reliance on the ratio of its judgment rendered in the case of M/s. S.V. Business (P) Ltd. v. CCE vide judgment and order dated 6-12-2006 [2007 (220) E.L.T. 443 (Tri.-Mumbai)] holding that Cenvat credit once earned legally does not lapse and there can be no objection to its utilization even after withdrawal of Deemed credit of that commodity? 2. S....
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....er its adjudication an order-in-original was passed on 30-4-2005 wherein it is recorded that the earlier Notification was having validity period upto and inclusive of 31-3-2003 only. That the respondent had simultaneously availed Cenvat credit on actual basis under Rule 3 of Cenvat Credit Rules, 2002 in respect of inputs used in the manufacture of final products i.e. fabrics and that the facility of deemed credit during the period of April, 2003 was not available to the respondent-assessee. He has, therefore, taken the view that such an act of the respondent was against the interest of the Revenue as it amounted to wrongful availment of credit and utilisation leading to clearance of the goods without payment of duty in contravention of prov....
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....E.L.T. 222 (Guj.). 5. Placing reliance on the ratio of the above decisions of the Tribunals, High Courts and the Hon'ble Supreme Court, the Commissioner (Appeals) has held that vide Finance Act, 1999, Clause 2(xxviii) was inserted in Section 37 of the Central Excise Act giving power to Central Government to make rule for providing for lapsing of credit of duty lying in unutilised with the manufacturer of the specified excisable goods as on appointed date and also for not allowing such credit to be utilised for payment of any kind of duty on any excisable goods on and from such date, consequent to the same. He further held that no rule or notification has been issued providing for lapsing of the deemed credit rightly earned till the date ....
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....r of the Tribunal and there is no judgment of any High Court or Hon'ble Supreme Court on this issue considering the Notification in question. Hence, both the appeals require to be admitted. He has further submitted that deemed credit availed of by the respondent was not admissible in view of the facility having been withdrawn with effect from 1-4-2003, more particularly when Notification granting deemed credit was not in force on the date on which the respondent had availed of Deemed Credit alleged to be lying unutilised in the balance on the duty of discharge/payment of Central Excise Duty. He has further submitted that on scrutiny of ER-1 returns for the month of April, 2003 it was clearly noticed that the respondent had commenced to avai....
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....s Ltd. v. Union of India, 1999 (106) E.L.T. 3 (S.C.), the scheme sought to be introduced cannot be made applicable to the goods which had already come into existence in respect of which the earlier scheme was applied under which the assessees had availed of the credit facility for payment of taxes. Any manner or mode of application of the said rule would result in affecting the rights of the assessees. The Hon'ble Supreme Court further observed that Section 37 of the Act does not enable the authorities concerned to make a rule which cannot be said to be applied to the goods manufactured prior to 16-3-1995 on which duty had been paid and credit facility thereto has been availed of for the purpose of manufacture of further goods. The Court fu....