RAVI PAINTS AND CHEMICALS Vs. CC

JUDGEMENT

(1.) This appeal is filed by the appellants against the Order -in -Appeal No. 57/2001 (M -I) dated 16.7.2001 passed by the Commissioner of Central Excise (Appeals), Chennai by which the Commissioner has rejected the appeal of the appellants.

(2.) Brief facts of the case are that the appellants, are engaged in the manufacture of paints and varnishes. They were sanctioned a refund claim of Rs. 7,88,873 being the amount of four claims filed by them. The department felt that the refund claimed and paid was over and above the amount of Rs. 4,41,561 which was originally claimed and rejected vide Order -in -Original No. 76/97 dated 17.12.97. Therefore, a show cause notice dated 17.8.99 was issued to the appellants for recovery of the amount erroneously sanctioned which culminated in the order of the Original No. 54/99 dated 17.11.199 by which the original authority ordered recovery of Rs. 3,47,312. Aggrieved by the said order, the party filed stay application and appeal before the lower appellate authority, who by Order -in -Appeal No. 67/2000 (M -I) dated 26.5.2000 rejected the appeal for non -compliance of the stay order passed by him wherein he had directed the party to pre -deposit a sum of Rs. 3,47,312 in terms of Section 35F of the CE Act, 1944. Aggrieved by the said order of the Commissioner (Appeals), the appellants filed appeal before CEGAT and CEGAT vide Final Order No. 1105/2000 and Stay Order No. 718/2000 dated 11.8.2000 held that there was no ground to interfere with the order passed by the lower appellate authority and directed the party to pre -deposit the sum of Rs. 3,47,312 and on production of proof of such pre -deposit, the lower appellate authority was directed to adjudicate the matter de novo. Aggrieved by the order of the Tribunal, the party filed Writ Petition before the Hon'ble High Court of Judicature at Madras vide Writ Petition No. 19584/2000 and WMP No. 28442/2000 and the Hon'ble High Court disposed of the Writ Petition by their order dated 22.11.2000 directing the party to pre -deposit a sum of Rs. 1,00,000 within eight weeks from the date of the High Court's order. The Commissioner was also directed to pass orders within a period of three months from the date of deposit of the amount by the party. The amount of Rs. 1,00,000 was deposited by the party on 30.1.2001. In terms of the direction of the Hon'ble High Court, the Commissioner (Appeals) took up the matter for decision and vide Order -in -Appeal No. 57/2001 (M -I) dated 16.7.2001 after due process of law, he rejected the appeal filed by the party. It is this order of the Commissioner (Appeals) which is impugned before me in the present appeal.

(3.) Shri C. Saravanan, learned counsel appeared for the appellants and submitted that the appellants were directed by the department to pay an amount equivalent to the credit taken on the inputs lying in stock and also on the inputs contained in finished goods which were lying in stock at the time of opting out of the Modvat scheme at the beginning of the financial year while availing SSI exemption. Accordingly the appellants paid a sum of Rs. 7,88,873 under protest. He has further submitted that the amount of refund of Rs. 7,88,873 granted as refund is the amount paid under protest. He has further submitted that appellants by mistake instead of claiming Rs. 7,88,872.71 (7,88,873) had claimed only Rs. 4,41,561 and the amount of Rs. 3,47,312 involved in the present appeal is the difference between the amount of Rs, 7,88,873 which they have paid under protest and the amount (Rs. 4,41,561 they had wrongly claimed earlier. He therefore, submitted that there was no double benefit accruing to the appellants, as contended by the Revenue. He, therefore, prayed for allowing the appeal.