PYARELAL RAMESHWAR PRASAD Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) EXAMINED the records and heard both the sides.

(2.) THE appellants were engaged in the manufacture of parts of PD Pumps during the material period (7 -3 -93 to 31 -8 -93). During that period, they cleared the goods without payment of Central Excise duty, claiming the benefit of exemption under Notification No. 54/93 -C.E., dated 28 -2 -93. The department contested this claim of exemption and, by show cause notice, asked the party to pay the duty on the goods cleared during the said period. The party contested the demand and eventually, the dispute came up before this Tribunal. This Tribunal by Final Order Nos. 1138 -1139/2000 -B, dated 17 -7 -2000 [2001 (127) E.L.T. 774] upheld the above demand of duty but directed the department that Modvat credit of the duty paid on the inputs used in the manufacture of the PD Pump parts be allowed to the assessee, if otherwise admissible, the assessee had pre -deposited an amount of Rs. 40,000/ - under Section 35F of the Central Excise Act for the purpose of their appeal being heard by the Tribunal. After the above final order was passed by the Tribunal, the assessee filed a claim for refund of the amount of Rs. 40,000/ - The department again, issued a show -cause notice to them proposing to reject the refund claim on the ground that the amount was liable to be appropriated towards the demand of duty confirmed under Final Order, dated 17 -7 -2000 of the Tribunal. This show cause notice was also contested. The original authority, in adjudication of the show cause notice, rejected the refund claim and directed the party to deposit the balance amount of duty (Rs. 40,144.07) towards discharge of the total duty liability of Rs. 80,144.07 incurred under the Tribunal's Final Order ibid. The authority however allowed Modvat credit on inputs to the tune of Rs. 1,82,500.65 to the assessee in terms of the Tribunal's order. An appeal was filed with the Commissioner (Appeals) against the rejection of the refund claim. It, however, did not succeed. The Commissioner (Appeals) has affirmed the Asstt. Commissioner's order in toto. Hence the present appeal of the assessee.

(3.) HEARD both the sides.