J.K. INDUSTRIES Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) ALL the appeals, barring one, were filed by the assessee. The remaining appeal is by the department. In one of the appeals filed by the assessee, their name is Vikrant Tyres Ltd. and, in the rest of their appeals, their name figures as J.K. Industries. One of applications, moved today on behalf of the assessee, is for recall of our order dated 8 -6 -2007, which reads thus:

(2.) THE remaining application was filed by the assessee qua respondent in the department's appeal No. E/582/2006. It is in this application that the assessee prays for recall of our order dated 8 -6 -2007, already reproduced. In support of this application, learned Counsel submits that the Revenue's application for stay of operation of Order -in -Appeal No., 199/2005, dated 27 -9 -2005 was rejected by this Bench as per Stay Order No. 1182 -1186/2006, dated 6 -12 -2006, with the result that the applicant became entitled to enjoy the fruit of the said Order -in -Appeal. It is submitted that learned Commissioner (Appeals), in the said Order -in -Appeal, had set aside, the lower authority's direction for appropriation of an amount of over Rs. 2.08 crores sanctioned as refund, towards certain preexisting demands. It is, however, submitted that, in respect of a small amount [Rs. 24,415/ -], the appropriation was upheld by the Appellate Commissioner. Against this part of the order of the Appellate Commissioner, the company went in appeal to this Tribunal and its Bangalore Bench allowed that appeal. It is submitted that, in terms of Order -in -Appeal No. 199/2005 read with the Tribunal's Final Order No. 981/2006, dated 25 -5 -2006, the applicant is entitled to get the entire amount of refund realized. On these facts, according to the applicant, our direction to reverse CENVAT credit taken on the strength of Order -in -Appeal No. 199/2005 is not sustainable in law and the same requires to be recalled. Learned SDR submits that, when the stay order dated 6 -12 -2006 was passed by this Bench, the party, represented by counsel, had not disclosed the fact that they had already taken re -credit of Rs. 2.04 crores [out of the aforesaid amount of Rs. 2.08 crores] in their CENVAT account. It is submitted that Order -in -Appeal No. 199/2005 was not a licence for the assessee to do this.