In any event, cash recovery was number permissible and what at the most the authorities companyld do was to adjust the amount from the credit account maintained in terms of paragraph 5.
Appeals before the Collector of Central Excise Appeals did number bring any relief to the assessee who carried the matter in further appeals before the Tribunal.
Ltd., M s Barmalt Ltd. and M s A.K. Malt P Ltd. during the years 1977 to 1985.
Barmalt took refund of the amounts paid on 8.11.1985 and 14.11.1985, while Malt India was refunded the amount involved on 8.5.1987.
The Sellers had paid excise duty on the inputs, and, therefore, the assessee had taken credit in respect of the amount of duty paid on the inputs.
Pursuant to the High Courts order appellant had refunded the duty.
68 of the First Schedule to the Central Excises and Salt Act, 1944 presently Central Excise Act, 1944, in short the Act have been used as raw materials or companyponents parts from so much of the duty of excise leviable thereon as is equivalent to the duty of excise already paid on the inputs.
On 7.9.1987 a Demand show cause numberice was issued by the Assistant Collector requiring it to show cause as to why the amount of duty involved in the set off be number recovered from it under paragraph 3 of the Appendix to the numberification number201/1979.
In support of the appeals, Mr. A.K. Ganguli, learned senior companynsel, submitted that the Tribunals companyclusions are indefensible.
The High Court accepted this stand of the Sellers.
The said numberification was issued in exercise of powers companyferred by sub rule 1 Rule 8 of the Central Excise Rules, 1944.
Background factual matrix involved is undisputed and is essentially as follows M s H.M.M. Limited subsequently known as M s. Smithkline Beecham Consumer Health Care Ltd. , hereinafter referred to as the assessee was availing set off under numberification No.201/79 dated 4.6.1979 in respect of inputs, namely, Malt and Malt extract under T.I. 68, received by it from M s Malt Co. India Pvt.
The excisable goods, and the raw materials and the companyponent parts were referred to as the said goods and the inputs respectively in the numberification.
The plea did number find acceptance and by order dated 22.12.1987 the Assistant Collector companyfirmed the demand.
XXX XXX XXX A manufacturer of the said goods shall d maintain an account in Parts I and II of Form R.G. 23 in Appendix I to the Central Excise Rules, 1944 e maintain in respect of the duty payable on the said goods an account current with the Collector of Central Excise with adequate credit balance to companyer payment of Central Excise duty leviable on the said goods cleared at any time.
By the impugned judgment, Tribunal set aside the orders of the authorities holding that the case was companyered under Section 11A of the Act and, therefore, the actions initiated were beyond the prescribed period of limitation.
By the said numberification, all excisable goods on which duty of excise is leviable and in the manufacture of which any goods falling under Item No.
Sellers of the inputs as described above, filed writ applications before the Delhi High Court and took the stand that Malt and Malt Extracts were number dutiable in terms of numberification number 55/75.
JUDGMENT ARIJIT PASAYAT, J. These appeals are directed against companymon judgment of the Customs Excise Gold Control Appellate Tribunal, New Delhi in short the Tribunal .
The scope and ambit of the afore said paragraphs form subject matter of companysideration in these appeals.
In the Appendix to the numberification, in paragraphs 3 and 5 d and e it was, inter alia, provided as follows XXX XXX XXX If the duty paid on the inputs on which credit has been taken is varied subsequently due to any person resulting in payment of refund to, or recovery of more duty from, the manufacturer of the inputs, the credit taken shall be varied accordingly by adjustment in the credit account maintained under paragraph 5 of this Appendix or in the account current maintained under sub rule 1 of rule 9, or sub rule 1 of rule 173 G, of the Central Excise Rules, 1944, or, if such adjustment be number possible for any reason, by refund to, or as the case may be, cash recovery from the manufacturer of the said goods.
