TaxTMI 
TaxTMI 
2019 (1) TMI 127
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....redit availed by them during the period May, 1994 to March, 1995. 2.The petitioner M/s.N.V.K Mohamed Sultan Rowther & Sons are manufacturers of Scented Supari marketed under the brand name Roja. They were required to classify the Scented Supari under Chapter heading 2106.90 of the Central Excise Tariff Act, 1985 as Pan Masala. 3.The petitioner had filed the Writ Petition No.4266 of 1994 before this court challenging the levy of duty on the scented supari manufactured by them under the head Pan Masala. Pending the above Writ Petition, the petitioner had paid the applicable excise duty on the scented supari after availing modvat credit on the inputs used in the manufacture of their final products under protest. 4.On obtaining a stay in the....
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.... recourse to Rule 57 C of the Central Excise Rules, 1944. The non issue of notification contemplated under Section 5-B of the Central Excise Act, 1944 for non reversal of Modvat credit was also cited as a ground for the demand. The proviso to Section 5-B regarding the non applicability of notification for refund cases even when a notification is issued, was also quoted in the notice. 7.The petitioner contends that the impugned show cause notice is without jurisdiction, opposed to Central Excise Act and Rules and is totally barred by limitation and is arbitrary and therefore liable to be quashed as there is no efficacious alternate remedy on the following grounds. (i) The respondents failed to properly appreciate the facts or understand t....
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.... Petition is premature as the statutory remedy is available for the petitioner. For non maintainability of the Writ Petition, they had relied on the decisions of the Hon'ble Supreme Court in Malladi Drugs & Pharma vs Union of India (2004 (166) ELT 153), Titaghur Paper Mills Co.Ltd vs State of Orissa (AIR 1983 SC 603), Whirlpool Corporation vs Registrar of Trade, Mumbai & Other (1998 (8) SCC), Harshanslal Sabina & another Vs Indian Oil Corporation & other (2003 (2) SCC 107) and some decisions of the Hon'ble High Courts in Loharu Steel Industries Limited Vs Collector of Central Excise (1993 (66) ELT 179 (Kar.)), Order dated 27.11.2008 WP (MD) No 3665 of 2006 of this Hon'ble Court. 9.It was alleged that the petitioner had not manu....
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....e petitioner. The dispute got settled in favour of the Petitioner by Order dated 12.04.1999 in WP No 4266 of 1994 and affirmed in the Order dated 27.04.2010 in Writ Appeal No 1271 of 2000. Consequent to the final orders, two proceedings are initiated in the files of the Department, one regarding the claim filed by the petitioner for refund of the duty paid by them under protest on the final products during the period May, 1994 to March, 1995 and the other being the impugned Show Cause Notice No.34/2010 dated 11.10.2010 for the demand of modvat credit availed during the same time. 13.There is no dispute that a refund claim accrues on the petitioner as a result of the Order dated 27.04.2010 in Writ Appeal No.1271 of 2000 going in favour of t....
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....t atleast until the order in Writ Appeal was passed by this Hon'ble Court. The Department had objection to the availing of modvat credit only after filing the refund claim by the petitioner on 29.12.2009 resubmitted again on 29.03.2010. Therefore, the credit is not wrongfully availed. In other words, the modvat credit was rightfully availed during the material time but became ineligible, as the final products were held to be non excisable at a distant date by this Hon'ble Court. 15.In the peculiar circumstances of the case, the question of demanding modvat credit availed is not tenable. It is arbitrary exercise of power. It is not correct to argue that the dispute got settled in favour of the petitioner by virtue of an order of thi....