TaxTMI 
TaxTMI 
2018 (12) TMI 777
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....8.07.99. The lower adjudicating authority vide Order No.R-67/06-07 dated 20.12.2006 has held that the appellant had not utilized the whole cenvat credit available to them on the last day of the month under consideration before payment of duty from PLA and therefore, deducted the amount of Rs. 23,82,040/- from the said claim. The lower authorities further held that the refund claim of additional Excise duty of Rs. 33,92,749.01 and Education Cess of Rs. 5,74,468.56 were not admissible for the refund under aforesaid Notification. Accordingly, the lower authorities sanctioned the refund claim of Rs. 4,10,84,917.10. After deducting the said amount making the total refund sanctionable is to the extent of Rs. 3,47,35,660/-. However, the lower authorities also adjusted the short payment of duty to the extent of Rs. 35,46,011/- along with interest of Rs. 5,29,667/- and the same were ordered to be deductable from the said refund claim. The lower authorities also appropriated the balance refundable amount of Rs. 2,59,10,847/- against a confirmed liability of Rs. 3,98,59,581/-. The period involved in the present appeal is from April, 2003 to November, 2006. 3.1 The ld.Advocate on behalf of ....
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....ere exemption contained in this Notification is not applicable to some of the goods produced by a manufacturer, such refund shall 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 manufacture of goods cleared under this Notification." As per the said Proviso, the appellant could avail the amount of cenvat credit in respect of duty paid on the inputs used in or in relation to manufacture of goods cleared under the said Notification. In other words, as per the language employed in the said Proviso, the appellant could avail Cenvat Credit only on that quantity of input which has gone into the manufacture of goods, i.e. Pan Masala in this case. It was further impressed upon with a condition for utilizing whole of the credit under Notification No.32/99-CE dated 08.07.99, does not apply to the appellant, who is engaged in the manufacture of Pan Masala as the Gutkha has been taken outside the purview of the exemption Notification. In fact, it is not in dispute by the Department that the appellant had utilized the credit on common input i.e. perfume proportionate to the extent the quantity ....
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....44, which has not been done in this case as held by Hon'ble Supreme Court in the case of Union of India Vs. Madhumilan Syntex Pvt. Ltd. : 1988 (35) ELT 349 (S.C.). Admittedly, no show-cause notice under Section 11A of the Act, has been issued to the appellant making demand of short payment of duty to be un-sustainable. 3.5 Regarding duty liability on account of the retrospective amendment of Notification No.32/99-CE dated 08.07.99 vide Finance Act, 2003, the appellant was liable to pay the amount of Rs. 3,98,59,581/-. The appellant had paid the said amount through Cenvat Credit Account for perfume amounting to Rs. 19,38,885.06 and another amount of Rs. 2,19,19,864/- was paid from Cenvat Credit Account of Pan Masala Packaging Material. It is the contention of the Department that the payments which are required to be made through retrospective amendment, needed to be paid through PLA Account, are not sustainable on account of the decisions of the Tribunal in the cases of (i) SCT Ltd. Vs. CCEx., Meerut : 2006 (202) ELT 814 (T) and (ii) Nehru Steel Vs. CCEx, Ghaziabad : 2007 (207) ELT 129 (T), wherein it has been held that the cenvat credit is also same as PLA in regard to debit of ....
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....ngs contained therein. 5. We have heard the rival submissions and considered the appeal records. 6. The issue before us is to decide as to whether the appellant was correct in debiting the amount pertaining to the retrospective amendment vide Finance Act, 2003 by making adjustment in the Cenvat Credit Account or otherwise and denial of refund on account of AED and Education Cess under the Notification No.32/99-CE dated 08.07.99. Along with these, there was some incidental denial of unutilized balance of cenvat credit causing short payment of duty along with interest. 7. Regarding the issue on the payment of amount as per retrospective amendment, we find that the same could be done either through PLA or through Cenvat Credit Account. In this connection, we rely upon the decision of the Tribunal in the case of SCT Ltd. Vs. CCEx., Meerut (supra), wherein the Tribunal has held in Para 4 as under : "4. It is seen that the proceedings in the present case have emanated from some delay in the discharge of duty liability on fortnightly basis by the appellant. Because of that delay, the Asst. Commissioner stopped the appellants' facility to pay duty from Cenvat account. Still, th....
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....entary invoices raised by the appellant, I find that the appellant has discharged the duty liability through debits in RG 23A, Part II in the month of March, 2001 and September, 2001. It is not alleged nor also is the contention of the Revenue that when the duty was paid in March, 2001 and September, 2001 there was no balance in RG23A, Part II account. Since this allegation or contention is not raised in the show cause notice as well in the Order-in-Original, it has to be presumed that the appellant had balance in their RG23A, Part II when they debited the amount. Though it may be a fact that they have paid the duty belatedly, nevertheless the duty liability has been discharged. Asking them to pay the same amount of duty through PLA for the only reason that if they would have discharged the duty liability during the relevant period when it was due they would have to discharge the same through PLA is incorrect proposition. It is settled law that the debits in RG23A, Part II are as good as debit in PLA for the discharge of duty liability subject to the condition that there should be balance in the account. In the present case it is undisputed fact that in the month of March, 2001 and....