Commissioner of Central Excise Vs. Ashok Arc

Commissioner of Central Excise vs Ashok Arc

Type Court Judgment Court Jharkhand Decided Aug 04, 2005

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Citation: sooperkanoon.com/519850
Court: Jharkhand High Court
Judge: S.J. Mukhopadhaya and; Narendra Nath Tiwari, JJ.
Decided On: Aug 04, 2005
Case Number: Taxation Case No. 1 of 2003
Subject: Excise

Case Summary

AI-generated summary - not the official court judgment text.

- CONSTITUTION OF INDIA. Articles 12 & 226: [M. Karpaga Vinayagam, C.J., Narendra Nath Tiwari & D.P.Singh, JJ] Writ petition - Maintainability - Whether State Co-operative Milk Producers Federation Ltd., is a State within meaning of Article 12 ? - Held, From perusal of relevant Rules of byelaws, it is clear that St...

Key legal issue: Excise
Acts & sections: Central Excise Act, 1944 - Sections 35F and 35H(1); ;Central Excise Rules, 1944 - Rule 57F, 57F(3), 57F(12) and 57F(13)

Parties & Advocates

Appellant / Petitioner

Commissioner of Central Excise

Advocate J.P. Gupta, ASG and; A. Anand, JC to ASG

Respondent

Ashok Arc

Advocate Pankaj Kumar and; Sumeet Gadodia, Advs.

Legal References

Acts: Central Excise Act, 1944 - Sections 35F and 35H(1); ;Central Excise Rules, 1944 - Rule 57F, 57F(3), 57F(12) and 57F(13)
Reported In: 2006(193)ELT399(NULL)

Excerpt

- constitution of india. articles 12 & 226: [m. karpaga vinayagam, c.j., narendra nath tiwari & d.p.singh, jj] writ petition - maintainability - whether state co-operative milk producers federation ltd., is a state within meaning of article 12 ? - held, from perusal of relevant rules of byelaws, it is clear that state government has no role to play either in policy decision for raising funds for federation or its expenditure and thus have no financial control. further there is nothing to indicate that government has any functional and administrative control over federation. state government has no role to play in matter of appointment of any of officials of federation including managing director. federation is totally independent in all respects and in no way subservient to state government in conduct of its business. federation in no way can be termed as agency of state government and does not come within meaning of article 12 of constitution. writ petitions against federation is not maintainable. .....it has been submitted that the cega tribunal while passing the impugned order dated 30th april, 2002, has overlooked the provisions, wherein, it is stipulated that the credit of specified duty allowed in respect of any inputs may be utilised by manufacturer of the final products towards payment of duty of excise on any of the following :(a) on any of the final products in the manufacture of the final products; or(b) on the waste, if any, arising in the course of manufacture of the final products; or(c) on the inputs themselves if such inputs are removed as such under sub-rule(3) to rule 57f.4. in this petition, the revenue has raised the following question for reference:whether the learned tribunal has gravely erred in allowing the appeal and directing the authority to refund the pre-deposit amount in cash when the same has been deposited through rg 23a pt.-ii i.e. modvat account and under the provisions of central excise rules, 1944 no such refund in cash is permissible?5. on hearing the parties, we find that the aforesaid issue was raised by the revenue before the cega tribunal, which answered the same in favour of the respondent by the impugned order dated 30th april, 2002. the stand of the learned counsel for the revenue that the amount should have been adjusted in rg-23a part-ii account can not be accepted, there being no such rg-23 part-ii account available respect of the finished goods. similar issue was decided by andhra pradesh high court in the case of deccan sales corporation, reported in : 1982(10)elt885(bom) , as noticed by the cega tribunal and, in fact, no credit account is being maintained by the respondent on account of raising of exemption limit. as the respondent will not be in a position to utilise the credit, the cega tribunal has rightly held that the revenue should refund the amount to the respondent in cash. there being no substantial question of law, raised for reference, we are not inclined to ask the tribunal to refer any issue.

Full Judgment

ORDER

S.J. Mukhopadhaya, J.

1. This petition under Section 35H(1) of the Central Excise Act, 1944 has been preferred on behalf of the Revenue raising a doubt relating to legality and propriety of the order dated 30th April, 2002, passed by the Customs, Excise & Gold (Control) Appellate Tribunal, Eastern Bench, Kolkata (hereinafter to be referred as 'CEGA Tribunal') in Appeal No. E-680/2001. By the said order, the CEGA Tribunal has accepted the stand of the appellant (respondent herein), set aside the order dated 5th September, 2001, passed by the Commissioner (Appeals), Customs & Central Excise, Patna and directed the Revenue to refund the amount in cash to the respondent-appellant.

2. The respondent M/s. Ashok Arc, Panchet Road, Chirkunda, District-Dhanbad claimed refund of Rs. 42,503.51 (rupees forty two thousand five hundred three and fifty one paise only) pursuant to Order Nos. A-598-599, dated 19th May, 1998, passed by the CEGA Tribunal in 1, 2 Appeals E-3441, 3442/93. The said amount was debited by the respondent from MODVAT Account under Section 35F of the Central Excise & Salt Act, 1944. The Deputy Commissioner, Central Excise, Ranchi, while sanctioned a sum of Rs. 3,150/- (rupees three thousand one hundred and fifty only) for payment through cheque, ordered that the balance amount of Rs. 39,353.51 (rupees thirty nine thousand three hundred fifty three and fifty one paise only) be made available to CENVAT Account, it having been debited by the respondent from its MODVAT Account. The respondent M/s. Ashok Arc, Dhanbad, initially moved in appeal before the Commissioner (Appeals), Customs & Central Excise, Patna, and prayed for refund of total amount in cash and to set aside the order, passed by the Deputy Commissioner, Central Excise, Ranchi. The appeal was rejected vide order dated 5th September, 2001, passed by the Commissioner (Appeals), Customs & Central Excise, Patna, in Appeal 414/JSR/CE/Appeal/2001, which was the impugned order before the CEGA Tribunal.

3. We have considered the submissions, made by the Counsel for the Revenue. He particularly relied on Sub-rules (12) and (13) of Rule 57F of the Central Excise Rules, 1944. It has been submitted that the CEGA Tribunal while passing the impugned order dated 30th April, 2002, has overlooked the provisions, wherein, it is stipulated that the credit of specified duty allowed in respect of any inputs may be utilised by manufacturer of the final products towards payment of duty of excise on any of the following :

(a) On any of the final products in the manufacture of the final products; or

(b) On the waste, if any, arising in the course of manufacture of the final products; or

4. In this petition, the Revenue has raised the following question for reference:

Whether the learned Tribunal has gravely erred in allowing the Appeal and directing the authority to refund the pre-deposit amount in cash when the same has been deposited through RG 23A Pt.-II i.e. MODVAT account and under the provisions of Central Excise Rules, 1944 no such refund in cash is permissible?

5. On hearing the parties, we find that the aforesaid issue was raised by the Revenue before the CEGA Tribunal, which answered the same in favour of the respondent by the impugned order dated 30th April, 2002. The stand of the learned Counsel for the Revenue that the amount should have been adjusted in RG-23A Part-II account can not be accepted, there being no such RG-23 Part-II account available respect of the finished goods. Similar issue was decided by Andhra Pradesh High Court in the case of Deccan Sales Corporation, reported in : 1982(10)ELT885(Bom) , as noticed by the CEGA Tribunal and, in fact, no credit account is being maintained by the respondent on account of raising of exemption limit. As the respondent will not be in a position to utilise the credit, the CEGA Tribunal has rightly held that the Revenue should refund the amount to the respondent in cash. There being no substantial question of law, raised for reference, we are not inclined to ask the Tribunal to refer any issue.

Same Court & Year Jharkhand · 2005 Same Parties Commissioner of Central Excise vs Ashok Arc Same Subject Excise Same Judge S.J. Mukhopadhaya and; Narendra Nath Tiwari, JJ. Acts & Sections Central Excise Act, 1944 - Sections 35F and 35H(1); ;Central ...

Excise