SUPARNA CHEMICALS LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) APPEAL No. E/3949/99 was filed on 24.11.1999 within the prescribed period. The supplementary Appeal No. E/191/2000 was filed on 18.1.2000, beyond the prescribed period. The delay was due to the fact that the appellants were under the bona fide belief that only one appeal was enough to be filed against the impugned order. The supplementary appeal was filed soon after they were advised by the Tribunal Registry for filing the same. The reasons stated in the COD application appear to be genuine, The COD application is therefore allowed.

(2.) THE stay applications are for waiver of per -deposit of the duty amounts of Rs. 65,210 and Rs. 2,00,345.60 and for stay of recovery thereof, pending the captioned appeals. The applicants has availed and utilized Modvat credits to the above extent on inputs on 9.10.1995 and 30.3.1995. Later they reversed the said credits on 10.11.1995 and 2.3.1995 respectively at the time of export of their final products under the Quantity Based Advance Licence scheme. Immediately thereafter, they realized that, under the said scheme, it was permissible to avail modvat credit on inputs utilized for the manufacture of the products exported. Therefore, they restored the credits to their RG23A Part II account. This was challenged by the department, who issued show -cause notices proposing to recover the aforesaid amounts, alleging that there was no provision authorizing the assessees to take re -credit of modvat amounts already reversed. The applicants contested the show -cause notices and the jurisdictional Assistant Commissioner, who adjudicated the dispute, rendered his decision in favour of the assessees. The department went in appeal before the Commissioner (Appeals) and the latter allowed those appeals. Hence the captioned appeals before the Tribunal and the present stay applications therein.

(3.) HEARD both sides after careful examination of the records in the case. Learned advocate, Shri M.V Ravindran, has reiterated the grounds of the appeals and submitted that the applicants have a strong prima facie case. He points out that the lower appellate authority decided against the assessees on the basis of a finding to the effect that the only legal course available to the assessees in the aforesaid facts and circumstances was to apply for a refund of the amounts of modvat credit wrongly reversed, under Section 11B of the Central Excise Act. Learned advocate contends that the said finding is unsustainable in law in view of case law to the contrary. He has relied on a decision of the Tribunal in the case of CCE v. Punjab Maize Products 1996(84) ELT 360, wherein it was held to the effect that restoration of modvat credit was permissible in the absence of provision for grant of refund. Learned advocate prays for full waiver of pre -deposit of the duty amounts, in view of existence of strong prima facie case in favour of the applicants. Learned JDR, Shri J.M. George, has opposed complete waiver of pre -deposit on the ground that the applicants have not pleaded any financial hardships.