2023 (9) TMI 58

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...., both are disposed off by a common order. Excise Appeal No. 78 of 2012 2. The facts of the case are that the the Appellant is engaged in manufacturing various products such as powder hair dye, shaving cream, etc. falling under CTH 33 of the Central Excise Tariff Act, 1985 in their factory situated at Sikkim. Accordingly, the Appellant was eligible for refund under Notification No.32/1999-CE dated 08.07.1999 of duty paid through PLA cash balance. 2.1 During the course of audit conducted for the period from April 2008 to March 2009, it was observed that the Appellant was utilizing Cenvat Credit of Basic Excise Duty (BED) for payment of EC and SHEC. Accordingly, the Appellant was issued a show-cause notice proposing to demand BED uti....

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.... appellant by way of impugned order. 2.8 The appellant filed this appeal before this Tribunal and this Tribunal allowed the appeal filed by the appellant vide order dated 24th October, 2019. 2.9 The said order was challenged by the Revenue before the Hon'ble High Court by way of Tax Appeal No.01/2020, where the Hon'ble High Court set aside the order passed by this Tribunal and remanded the matter back to this Tribunal for fresh adjudication. Therefore, this appeal is before us. 3. The ld.Counsel for the appellants submits that the issue involved in these matters is no longer res integra and has been decided in favour of the appellants in their own case reported in 2007 (219) ELT 585 (Tri.-Kolkata). 3.1 It was further submitted t....

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....Excise Rules, 2004. Therefore, the cenvat credit of BED can be utilised for payment of any duty of Excise, which includes EC & SHEC. 3.4 He further submitted that Rule 3(7)(b) of CCR, 2004 does not impose any restriction on utilization of BED for the payment of EC and SHEC. To support, he relied on the decision of this Tribunal in the case of Sun Pharmaceutical Industries v. CCE, Jammu - 2007 (207) ELT 673 (Tri.- Del.). 4. On the other hand, the ld.A.R. for the Revenue, relied on the decision of this Tribunal in the case of in the case of CCE, Jammu v. Tawi Chemical Industries - 2013 (290) ELT 734 (Tri.- Del), wherein this Tribunal distinguished the decision of the Hon'ble High Court of Guwahati in the case of CCE Vs. Prag Bosimi Synt....

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.... and cannot be relied upon. In fact, in the said case, the issue before the Hon'ble Apex Court that whether the assessee can avail the refund of EC & SHEC paid through PLA availing area based exemption or not. Therefore, the said decision has no relevance to the facts and circumstances of the case. 6. Heard both sides and considered the submissions. 7. We find that the short issue is decided by us whether the appellants are entitled to utilise the cenvat credit of BED for payment of EC and SHEC while availing area based exemption under Notification No.20/2008-CE dated 27.03.2008 or not. 8. We find that the Revenue is having on the decision of Tawi Chemical Industries (supra). As per this decision, the appellants are not entitled to....