2013 (2) TMI 114

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....n Excise Appeal No. 93 of 2006, dated 16.09.2011. 3. The appellant though has raised number of questions of law in the memo of appeal, however, three questions have been pressed specifically which are as under: (i) Whether the Tribunal has erred in holding that the assessee becomes entitled to the entire amount of credit of Rs. 2.37 crores as refund and the assessee can file a refund claim before the appropriate authority which cannot be and should not be rejected on limitation ground and statutory provisions do not come in the way of refund of accumulated credit attributable to goods which have been exported? (ii) Whether the Hon'ble Tribunal has erred in not appreciating the fact that the percentage calculated by the Cost Auditor....

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....'ble Supreme Court observed that "once a validity of a provision is challenged and the validity is upheld by reading down that provisions, then it is not necessary that in all subsequent proceedings the validity must again be challenged. It is sufficient if a party claims that the provisions has to be read in the manner laid down by a judgment of Supreme Court. Then, Hon'ble Supreme Court applying the principle has laid down in Eicher Motors case (supra) that sub-rule 17 cannot be applied to vested rights. Therefore, to the extent that the goods have already been exported, prior to March, 1997, the assessee would be entitled to a refund." 5. We are of the considered opinion that in this matter the total Modvat credit claimed by the pe....

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....e above, it is clear that the matter was remanded to the lower authority not only for redetermination of the quantum but with the liberty to assessee to agitate all its points. Thereafter, the matter was considered again and then the adjudicatory authority passed the order on 30.11.2005. The adjudicatory authority disallowed Rs. 2,37,70,000/- by said order which has been challenged by the assessee before the Tribunal wherein this impugned order dated 16.09.2011 was passed. 7. The learned Tribunal relied upon the judgement of the Hon'ble Supreme Court delivered in the case of Samtel India Ltd. Vs. CCE reported in 2003 (155) E.L.T. 14 (SC) and held that Rule 57F (17) cannot override vested rights in view of the Supreme Court judgment and t....