2002 (1) TMI 122

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....ides clearing in the local market. They availed benefit of Duty Entitlement Certificate Scheme (DEEC Scheme). They imported raw material under the value based and quantity based advance licences issued to them under the said scheme. The Notification No. 203/92-Cus., dated 19-5-92 exempted the materials imported against that licence from the payment of whole of customs duty and additional duty, subject to the conditions specified therein. The appellants were initially not aware of the notification and on realisation their mistake, they decided to reverse the credit. However, they vide letter dated 30-1-95 intimated to the department that reversal of Modvat credit due to mistake, should be treated to had been done under protest. This they so ....

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.... asking of the A.C. Therefore, the impugned order of the Commissioner (Appeals) deserves to be set aside. The counsel has also referred, in support of his contention, the Apex Court judgment in India Cement Ltd. v. CCE - 1989 (41) E.L.T. 358 (S.C.) and the Tribunal's judgment in Rosin & Turpentine Factory v. CCE - 1994 (73) E.L.T. 66. 4. On the other hand, learned SDR has only reiterated the correctness of the impugned order. 5. We have heard both the sides and gone through the record. 6. The facts are not much in dispute. The appellants when firstly reversed the credit, sent letter dated 30-1-95 to the excise department. The relevant para of that letter is extracted below :- "We however undertake to debit any ....

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.... Similarly, in Rosin & Turpentine Factory case (supra), the Tribunal had held that payment was made under protest, by treating the letter sent by the assessee as protest letter. 10. Apart from this, from the facts and material brought on record, referred to above, it is evident that cause of action for claiming refund accrued to the appellants on 10-2-97 when they were directed by the A.C. to debit the recredited amount and they were also asked to pay even interest for the period 12-12-96 to 10-2-97 on account of delayed reversal of the credit. The payment of interest was accepted from them in May, 1999. Earlier to that, they had no occasion to claim refund of the Modvat credit because they had themselves recredited the amount in t....