M/S. Wonderseal Packaging Vs. C.C.E., Nagpur - Court Judgment

Excerpt:
1. the appellants are an ssi unit manufacturing l.d.p.e. lock bags falling under sub-heading 3923.90 of the central excise tariff act, 1985. they exported these goods and claimed the refund of rs. 88,291/- and rs. 98,706/- in their two claims in respect of the accumulated modvat credit under rule 57 f(13) of central excise rules, 1944. these amounts were sanctioned by the dy. commissioner of central excise, amravati dn. vide his order dt. 30.3.2000 and another order of even date. however, the dy. commissioner of central excise, amravati dn.issued two separate show cause notices dated 14.8.2000 for recalling these amount son the ground that they had not followed the ar 4 procedure. on considering the submissions of the party, the dy.commissioner of central excise vide two separate orders both dt.6.10.2000 ordered for the recovery of the aforestated amounts. the party filed appeals against the above orders of the original authority which were dismissed by a common order dt. 31.1.2001 of the commissioner (appeals), bhopal. these are the second stage appeals filed by the party. the stay petitions filed by them are listed for hearing today. i have heard shri r.g. seth, advocate for the appellants and shri a.k. jain, sdr for the respondents. the ld. advocate for the appellants relies on the decision of the tribunal in c.c.e. chandigarh vs. knawal engineers reported in 1996 (87) elt 141 (t), in which it is held that the refund of credit of duty is admissible on the strength of the specified documents viz., bill of entry or shipping bill and shipping bill can be considered as a valid document in the absence of ar 4. i have considered these submissions. as already stated above, the original authority had sanctioned the impugned amounts of the refund to the party on merits. they have however been ordered to be recalled merely on the ground that they had not followed ar 4 procedure. it is well settled that the substantial right of the party cannot be denied merely on the ground of not confirming to the provisions of procedural law. the appellants have therefore, in my view, made out a prima facie case in their favour. the deposit of the impugned amounts are therefore ordered to be waived and their recovery stayed till the disposal of the appeals.

Judgment:
1. The appellants are an SSI Unit manufacturing L.D.P.E. lock bags falling under sub-heading 3923.90 of the Central Excise Tariff Act, 1985. They exported these goods and claimed the refund of Rs. 88,291/- and Rs. 98,706/- in their two claims in respect of the accumulated modvat credit under Rule 57 F(13) of Central Excise Rules, 1944. These amounts were sanctioned by the Dy. Commissioner of Central Excise, Amravati Dn. vide his Order dt. 30.3.2000 and another order of even date. However, the Dy. Commissioner of Central Excise, Amravati Dn.

issued two separate show cause notices dated 14.8.2000 for recalling these amount son the ground that they had not followed the AR 4 procedure. On considering the submissions of the party, the Dy.

Commissioner of Central Excise vide two separate orders both dt.

6.10.2000 ordered for the recovery of the aforestated amounts. The party filed appeals against the above orders of the Original Authority which were dismissed by a common Order dt. 31.1.2001 of the Commissioner (Appeals), Bhopal. These are the second stage appeals filed by the party. The Stay Petitions filed by them are listed for hearing today. I have heard Shri R.G. Seth, Advocate for the appellants and Shri A.K. Jain, SDR for the respondents. The ld. Advocate for the appellants relies on the decision of the Tribunal in C.C.E. Chandigarh vs. Knawal Engineers reported in 1996 (87) ELT 141 (T), in which it is held that the refund of credit of duty is admissible on the strength of the specified documents viz., Bill of Entry or Shipping Bill and shipping bill can be considered as a valid document in the absence of AR 4. I have considered these submissions. As already stated above, the Original Authority had sanctioned the impugned amounts of the refund to the party on merits. They have however been ordered to be recalled merely on the ground that they had not followed AR 4 procedure. It is well settled that the substantial right of the party cannot be denied merely on the ground of not confirming to the provisions of procedural law. The appellants have therefore, in my view, made out a prima facie case in their favour. The deposit of the impugned amounts are therefore ordered to be waived and their recovery stayed till the disposal of the appeals.