Herbo Foundation Pvt. Ltd. and Tread N Patches and Godrej SARE Lee Ltd. and Belle Herbals (P) Ltd and Eminent Health Care & Cosmetics Pvt. Ltd. and Kamakhya Foods Pvt. Ltd. and Ozone Pharmaceuticals and Godrej SARA Lee Ltd. and Ozone Ayurvedics and Godrej SARA Lee Ltd. and Cosmo Personal Care Pvt. Ltd. and Shyam Century Ferrous Ltd. and Prag Electricals Pvt. Ltd. and Hindustan Coco Cola Beverage (P) Ltd. and Assam Roofing Ltd. and Kathari Products Ltd. and M/s Luit Business Pvt. Ltd. V. The Union of India and The Commissioner of Central Excise, Marlow Building, Shillong, Meghalaya and The Dy. Commissioner, Central Excise, O/O Asstt. Commissioner of Central Excise, G.S. Road, Bhangagarh, Guwahati-5, Assam

WA/401/2006

AI Insights

The case involves multiple writ appeals filed by various manufacturing companies against the Union of India and other respondents, challenging the recovery of excise duty refunds granted under Notification No. 33/99-CE dated 8.7.99. The manufacturers argued that the recovery of refunds, which included unutilized CENVAT credit, was unauthorized. The court examined the amendments to the Notification and the provisions of the Finance Act, 2003, particularly Section 153, which allowed for the recovery of refunds not due under the amended Notification. The court concluded that the manufacturers were not entitled to retain the refunds that included unutilized CENVAT credit and upheld the recovery actions taken by the excise authorities.

• Counselvise Citation: [2009] 140 COUNSELVISE.COM (IT) 816490 (HC-ASSAM)
• Appeal Type: Others
• Pronouncement Date: 24-06-2009
• Assessment Year: misc
• Other Referred Cases: Commissioner of Central Excise & Customs, Vadodara -vs- Narmada Chematur Pharmaceuticals Limited, Commissioner of Income Tax, Bombay & Ors. -vs- Podar Cement Pvt. Ltd. & Ors.
• Laws Referred To: Central Excise Act, 1944, Industrial Policy Resolution dated 24.12.1997, CENVAT Credit Rules, 2001
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: K N CHOUDHURY; DUBEY; M MAHANTA; B K KASHYAP
• Assessee Lawyers: A K SARAF; D BARUA; S CHETIA; N HAWELIA; A GOYAL; M L GOPE
• Keywords: Central Excise; CENVAT credit; Exemption; Industrial Policy; Refund
• Section: 5; 153(4); 3(3); 153(1); 173G

Judgement Text

"WA 401/2006 BEFORE HON’BLE MR. JUSTICE RANJAN GOGOI HON’BLE MR. JUSTICE HRISHIKESH ROY WRIT APPEAL NO. 401 OF 2006 WRIT APPEAL NO. 402 OF 2006 WRIT APPEAL NO. 403 OF 2006 WRIT APPEAL NO. 404 OF 2006 WRIT APPEAL NO. 405 OF 2006 WRIT APPEAL NO. 406 OF 2006 WRIT APPEAL NO. 407 OF 2006 WRIT APPEAL NO. 408 OF 2006 WRIT APPEAL NO. 409 OF 2006 WRIT APPEAL NO. 410 OF 2006 WRIT APPEAL NO. 411 OF 2006 WRIT APPEAL NO. 412 OF 2006 WRIT APPEAL NO. 413 OF 2006 WRIT APPEAL NO. 429 OF 2006 WRIT APPEAL NO. 435 OF 2006 WRIT APPEAL NO. 7 OF 2007 WRIT APPEAL NO. 38 OF 2007 AND WRIT APPEAL NO. 53 OF 2007 IN WRIT APPEAL NO. 401 OF 2006 HERBO FOUNDATION PVT. LTD. REGISTERED OFFICE & FACTORY SHED NOS 21,22,23,24 INDUSTRIAL ESTATE BAMMUNIMAIDAN GHY 21 REPT. BY SAJJAN AGARWAL DIRECTOR OF PETITIONER COMPANY & R/O NILACHAL APARMENTS A K AZAD ROAD GHY 8 & &.. Appellant Versus 1 THE UNION OF INDIA REPT. BY THE SECRETARY TO THE GOVT. OF INDIA MINISTRY OF FINANCE DEPT OF REVEN UE NORTH BLOCK NEW DELHI 2 THE COMMISSIONER OF CENTRAL EXCISE, MARLOW BUILDING, SHILLONG, MEGHALAYA. 3 THE DY. COMMISSIONER, CENTRAL EXCISE, O/O ASSTT. COMMISSIONER OF CENTRAL EXCISE, G.S.ROAD, BHANGAGARH, GUWAHATI-5, ASSAM. & & & & Respondent ADVOCATES FOR THE APPELLANT : DR. A K SARAF MR. D BARUAH MR. S CHETIA MS. N HAWELIA MR. A GOYAL MS. M L GOPE ADVOCATES FOR THE RESPONDENTS : MR. K N CHOUDHURY MR. DUBEY MR. M MAHANTA MR. B K KASHYAP IN WRIT APPEAL NO. 402 of 2006 M/S TREAD N PATCHES HAVING ITS PRINCIPAL PLACE OF BUSINESS AND FACTORY AT FATASIL-KATABARI ROAD, MAN APARA, GHY-25, DIST-KAMRUP, REP. BY ANAND PODDAR, PROP. OF THE APPELLANT FIRM R/O REHABARI, GUWAHATI- 7. .........Appellant Versus 1 THE UNION OF INDIA REP. BY ITS SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF FINANCE, DEPTT. OF REVENUE, NORTH BLOCK, NEW DELHI. 2 THE COMMISSIONER OF CENTRAL EXCISE, MARLOW BUILDING, SHILLONG, MEGHALAYA. 3 THE DY. COMMISSIONER, CENTRAL EXCISE, O/O ASSTT. COMMISSIONER OF CENTRAL EXCISE, G.S.ROAD, BHANGAGARH, GUWAHATI-5, ASSAM. ...... Respondents ADVOCATES FOR THE APPELLANT : DR. A K SARAF MR. D BARUAH MR. S CHETIA MS. N HAWELIA MR. A GOYAL MS. M L GOPE ADVOCATES FOR THE RESPONDENTS : MR. K N CHOUDHURY MR. DUBEY IN WRIT APPEAL NO. 403 OF 2006 GODREJ SARE LEE LTD. REGD. OFFICE AT PIROJSHANAGAR, EASTERN EXPRESS HIGHWAY, VIKROLI [E], MUMBAI-79, INDIA AND ALSO HAS A MANUFACTURING UNIT SITUATED AT SHED NO[S] A12 AND B2, MINI INDUSTRIAL ESTATE, KALAPAHAR, GHY-16, REP. BY ITS AUTHORISED REP. B. BASKAR AND R/O INDUSTRIAL ESTATE, BAMUNIMAIDAN, GUWAHATI-21. ....... Appellant Versus 1 THE UNION OF INDIA REP. BY ITS SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF FINANCE, DEPTT. OF REVENUE, NORTH BLOCK, NEW DELHI. 2 THE COMMISSIONER OF CENTRAL EXCISE, MARLOW BUILDING, SHILLONG, MEGHALAYA. 3 THE DY. COMMISSIONER, CENTRAL EXCISE, O/O ASSTT. COMMISSIONER OF CENTRAL EXCISE, G.S.ROAD, BHANGAGARH, GUWAHATI-5, ASSAM. ....... Respondent ADVOCATES FOR THE APPELLANT : DR. A K SARAF MR. D BARUAH MR. S CHETIA MS. N HAWELIA MR. A GOYAL MS. M L GOPE ADVOCATES FOR THE RESPONDENTS : MR. K N CHOUDHURY MR. DUBEY IN WRIT APPEAL NO. 404 OF 2006 BELLE HERBALS (P) LTD REGD. OFFICE AND FACTORY AT G.S.ROAD, BARIDUA IN THE DISTRICT OF RI BHOI, PO-AMERUIGOG-781023, MEGHALAYA., REP. BY ONE OF ITS DIRECTOR, MR. NISHANT AGARWAL, R/O REHABARI, GHY-8. .....Appellant Versus 1 THE UNION OF INDIA REP. BY ITS SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF FINANCE, DEPTT. OF REVENUE, NORTH BLOCK, NEW DELHI. 2 THE COMMISSIONER OF CENTRAL EXCISE, MARLOW BUILDING, SHILLONG, MEGHALAYA. 3 THE DY. COMMISSIONER, CENTRAL EXCISE, OFFICE OF THE ASSTT. COMMISSIONER OF CENTRAL EXCISE, G.S.ROAD, BHANGAGARH, GUWAHATI-5, ASSAM. .........Respondent s ADVOCATES FOR THE APPELLANT : DR. A K SARAF MR. D BARUAH MR. S CHETIA MS. N HAWELIA MR. A GOYAL MS. M L GOPE ADVOCATES FOR THE RESPONDENTS : MR. K N CHOUDHURY MR. DUBEY IN WRIT APPEAL NO. 405 OF 2006 EMINENT HEALTH CARE & COSMETICS PVT. LTD. HAVING ITS REGD. OFFICE AND FACTORY AT SHED NO.59, INDUSTRIAL ESTTAE, BAMUNIMAIDAM, GUWAHATI-21, REP. BY AMIT AGARWAL, DIRECTOR OF APPELLANT COMPANY AND R/O DONA APARTMENTS, SILPUKHURI, GUWAHATI-3. ........Appellant Versus 1 THE UNION OF INDIA & ORS REP. BY ITS SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF FINANCE, DEPTT. OF REVENUE, NORTH BLOCK, NEW DELHI. 2 THE COMMISSIONER OF CENTRAL EXCISE, MARLOW BUILDING, SHILLONG, MEGHALAYA. 3 THE DY. COMMISSIONER, CENTRAL EXCISE, OFFICE OF THE ASSTT. COMMISSIONER OF CENTRAL EXCISE, G.S. ROAD, BHANGAGARH, GUWAHATI-5, ASSAM. ..... Respondents ADVOCATES FOR THE APPELLANT : DR. A K SARAF MR. D BARUAH MR. S CHETIA MS. N HAWELIA MR. A GOYAL MS. M L GOPE ADVOCATES FOR THE RESPONDENTS : MR. K N CHOUDHURY MR. DUBEY IN WRIT APPEAL NO. 406 OF 2006 KAMAKHYA FOODS PVT. LTD. REGD. OFFICE AND FATORY AT PASCHIM BORAGAON, NH 37 BYPASS, PO-GOTANAGAR, GHY-33, REP. BY SANTOSH SHANTILAL GANGWA, DIRECTOR OF THE APPELLANT COMPANY AND R/O MALIGAON, GUWAHATI. ....Appellant Versus 1 THE UNION OF INDIA REP. BY ITS SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF FINANCE, DEPTT. OF REVENUE, NORTH BLOCK, NEW DELHI. 2 THE COMMISSIONER OF EXCISE, MARLOW BUILDING, SHILLONG, MEGHALAYA. 3 THE DY. COMMISSIONER, CENTRAL EXCISE, OFFICE OF THE ASSTT. COMMISSIONER OF CENTRAL EXCISE, OFFICE OF THE ASSTT. COMMISSIONER OF CENTRAL EXCISE, GS ROAD, BHANGAGARH, GHY-5, ASSAM. .... Respondents ADVOCATES FOR THE APPELLANT : DR. A K SARAF MR. D BARUAH MR. S CHETIA MS. N HAWELIA MR. A GOYAL MS. M L GOPE ADVOCATES FOR THE RESPONDENTS : MR. K N CHOUDHURY MR. DUBEY IN WRIT APPEAL NO. 407 OF 2009 OZONE PHARMACHETICALS HAVING ITS REGISTERED OFFICE AND FACTORY AT EPIP, AMINGAON, GHY-781 031 IN THE DISTRICT OF KAMRUP, REP. BY SHRI SUBHASH CHANDER SEHGAL, MANAGING DIRECTOR OF THE APPELLANT COMPANY AND RESIDENT OF GURGAON IN THE STATE OF HARYANA. ........Appellant Versus 1 UNION OF INDIA REP. BY ITS SECY, TO THE GOVT. OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI. 2 THE COMMISSIONER OF CENTRAL EXCISE, MARLOW BUILDING, SHILLONG, MEGHALAYA. 3 THE DEPUTY COMMISSIONER, CENTRAL EXCISE, OFFICE OF THE ASSISTANT COMMISSIONER OF CENTRAL EXCISE, G.S. ROAD, BHANGAGARH, GHY-5, ASSAM. & & & &Respondents ADVOCATES FOR THE APPELLANT : DR. A K SARAF MR. D BARUAH MR. S CHETIA MS. N HAWELIA MR. A GOYAL MS. M L GOPE ADVOCATES FOR THE RESPONDENTS : MR. K N CHOUDHURY MR. DUBEY IN WRIT APPEAL NO. 408 OF 2006 GODREJ SARA LEE LTD. REGD. OFFICE AT THATTANCHAVADY, PONDICHERRY-9 , ALSO MANUFACTURING UNIT AT SHED NO. A12 & B2 MINI INDUSTRIAL ESTATE, K ALAPAHAR, GHY-16, REP. BY ITS AUTHORIZED REP. SHRI GUTHULA VENKATSWARA RAO AND R/O CHANDMARI, GHY-3 ....... Appellant Versus 1 THE UNION OF INDIA REP. BY ITS SECY, TO THE GOVT. OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI. 2 THE COMMISSIONER OF CENTRAL EXCISE, MARLOW BUILDING, SHILLONG, MEGHALAYA. 3 THE DEPUTY COMMISSIONER, CENTRAL EXCISE, OFFICE OF THE ASSISTANT COMMISSIONER OF CENTRAL EXCISE, G.S. ROAD, BHANGAGARH, GHY-5, ASSAM. .....Respondents. ADVOCATES FOR THE APPELLANT : DR. A K SARAF MR. D BARUAH MR. S CHETIA MS. N HAWELIA MR. A GOYAL MS. M L GOPE ADVOCATES FOR THE RESPONDENTS : MR. K N CHOUDHURY MR. DUBEY IN WRIT APPEAL NO. 409 OF 2006 OZONE AYURVEDICS HAVING PRINCIPAL PLACE OF BUSINESS AND FACTORY AT EPIP, AMINGAON, GUWAHATI-31, REP. BY SUBHASH CHANDER SEHGAL, PROPRIETOR OF THE PETITIONER FIRM AND R/O GURGAON, IN THE STATE OF HARYANA. ...Appellant Versus 1 THE UNION OF INDIA REP. BY ITS SECY. TO THE GOVT. OF INDIA, MINISTRY OF FINANCE, DEPTT. OF REVENUE, NORTH BLOCK, NEW DELHI. 2 THE COMMISSIONER OF CENTRAL EXCISE, MARLOW BUILDING, SHILLONG, MEGHALAYA. 3 THE DY. COMMISSIONER, CENTRAL EXCISE, O/O ASSTT. COMMISSIONER OF CENTRAL EXCISE, G.S.ROAD, BHANGAGARH, GUWAHATI-5, ASSAM. ........Respondent ADVOCATES FOR THE APPELLANT : DR. A K SARAF MR. D BARUAH MR. S CHETIA MS. N HAWELIA MR. A GOYAL MS. M L GOPE ADVOCATES FOR THE RESPONDENTS : MR. K N CHOUDHURY MR. DUBEY IN WRIT APPEAL NO. 410 OF 2006 GODREJ SARA LEE LTD. REGD. OFFICE AT PIROJSHANAGAR, EASTERN EXPRESS HIGHWAY, VIKROLI [E], MUMBAI-79, INDIA AND ALSO MANUFACTURING UNIT AT APDC COMPLEX, CITI, KALAPAHAR, GUWAHATI-16, REP. BY ITS AUTHORISED REP. B. BASKAR AND R/O INDUSTRIAL ESTATE, BAMUNIMAIDAN, GUWAHATI-21. ....Appellant Versus 1 THE UNION OF INDIA REP. BY ITS SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI. 2 THE COMMISSIOENR OF CENRTRAL EXCISE, MARLOW BUILDING, SHILLONG, MEGHALAYA. 3 THE DY. COMMISSIONER, CENTRAL EXCISE, O/O ASSTT. COMMISSIONER OF CENTRAL EXCISE, G.S.ROAD, BHANGAGARH, GUWAHATI-5, ASSAM. ....Respondents ADVOCATES FOR THE APPELLANT : DR. A K SARAF MR. D BARUAH MR. S CHETIA MS. N HAWELIA MR. A GOYAL MS. M L GOPE ADVOCATES FOR THE RESPONDENTS : MR. K N CHOUDHURY MR. DUBEY IN WRIT APPEAL NO. 411 OF 2006 COSMO PERSONAL CARE PVT. LTD. HAVING ITS REGISTERED OFFICE AT NEHA APARTMENTS, SATI JAYAMATI ROAD, ATHGAON, GHY-1 AND FACTORY AT EPIP, AMINGAON, GHY-31 REP. BY SHRI SANDEEP KUMAR JAIN, AUTHORIZED REP. OF REPRESENTATIVE OF THE APPELLANT COMPANY AND R/O ATHGAON, GHY. .....Appellant Versus 1 THE UNION OF INDIA REP. BY ITS SECY, TO THE GOVT. OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI. 2 THE COMMISSIONER OF CENTRAL EXCISE, MARLOW BUILDING, SHILLONG, MEGHALAYA. 3 THE DEPUTY COMMISSIONER, CENTRAL EXCISE, OFFICE OF THE ASSISTANT COMMISSIONER OF CENTRAL EXCISE, G.S. ROAD, BHANGAGARH, GHY-5, ASSAM. ..Respondents ADVOCATES FOR THE APPELLANT : DR. A K SARAF MR. D BARUAH MR. S CHETIA MS. N HAWELIA MR. A GOYAL MS. M L GOPE ADVOCATES FOR THE RESPONDENTS : MR. K N CHOUDHURY MR. DUBEY IN WRIT APPEAL NO. 412 OF 2006 GODREJ SARA LEE LTD. REGD. OFFICEA T PIROJSHANAGAR, EASTERN EXPRESS HIGHWAY, VIKROLI [E], MUMBAI-79, INDIA AND MANUFACTURING UNIT AT PLOT NO.38, BYE LANE NO.5, INDUSTRIAL ESTATE, BAMUNIMAIDAM, GHY-21, REP. BY ITS AUTHORISED REP. B. BASKAR AND R/O INDUSTRIAL ESTTAE, BAMUNIMAIDAN, GHY-21. .....Appellant Versus 1 THE UNION OF INDIA & ORS. REP. BY ITS SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF FINANCE, DEPTT. OF REVENUE, NORTH BLOCK, NEW DELHI. 2 THE COMMISSIONER OF CENTRAL EXCISE, MARLOW BUILDING, SHILLONG, MEGHALAYA. 3 THE DY. COMMISSIOER, CENTRAL EXCISE, O/O ASSTT. COMMISSIONER OF CENTRAL EXCISE, G.S.ROAD, BHANGAGARH, GUWAHATI-5, ASSAM. ..... Respondents ADVOCATES FOR THE APPELLANT : DR. A K SARAF MR. D BARUAH MR. S CHETIA MS. N HAWELIA MR. A GOYAL MS. M L GOPE ADVOCATES FOR THE RESPONDENTS : MR. K N CHOUDHURY MR. DUBEY IN WRIT APPEAL NO. 413 OF 2006 SHYAM CENTURY FERROUS LTD. REGD. OFFICE AND FACTORY AT EPIP, BYRNIHAT IN THE STATE OF MECHALAYA, REP. BY AJIT KUMAR JANA, DIRECTOR OF PETITIOER COMPANY AND R/O CHRISTIANBASTI, GUWAHATI-5. .....Appellant Versus 1 THE UNION OF INDIA REP. BY ITS SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF FINANCE, DEPTT. OF REVENUE, NORTH BLOCK, NEW DELHI. 2 THE COMMISSIONER OF CENTRAL EXCISE, MARLOW BUILDING, SHILLONG, MEGHALAYA. 3 THE DY. COMMISSIONER, CENTRAL EXCISE, O/O ASSTT. COMMISSIONER OF CENTRAL EXCISE, G.S.ROAD, BHANGAGARH, GUWAHATI-5, ASSAM. ..... Respondents ADVOCATES FOR THE APPELLANT : DR. A K SARAF MR. D BARUAH MR. S CHETIA MS. N HAWELIA MR. A GOYAL MS. M L GOPE ADVOCATES FOR THE RESPONDENTS : MR. K N CHOUDHURY MR. DUBEY IN WRIT APPEAL NO. 429 OF 2006 PRAG ELECTRICALS PVT. LTD. REGD. OFFICE & FACTORY AT INDUSTRIAL ESTATE, BAMUNIMAIDAM, GUWAHATI-21, REP. BY KISHALOY PURKAYASTHA, AUTHORISED REPRESENTATIVE OF PETITIONER COMPANY AND RESIDENT OF KAHILIPARA COLONY, GUWAHATI-18. .....Appellant Versus 1 UNION OF INDIA & ORS. REP. BY ITS SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF FINANCE, DEPTT. OF REVENUE, NORTH BLOCK, NEW DELHI. 2 THE COMMISSIONER OF CENTRAL EXCISE, MARLOW BUILDING, SHILLONG, MEGHALAYA. 3 THE DEPUTY COMMISSIONER, CENTRAL EXCISE, OFFICE OF THE ASSTT. COMMISSIONER OF CENTRAL EXCISE, G.S.ROAD, BHANGAGARH, GUWAHATI-5, ASSAM. ......Respondents ADVOCATES FOR THE APPELLANT : DR. A K SARAF MR. D BARUAH MR. S CHETIA MS. N HAWELIA MR. A GOYAL MS. M L GOPE ADVOCATES FOR THE RESPONDENTS : MR. K N CHOUDHURY MR. DUBEY IN WRIT APPEAL NO. 435 OF 2006 HINDUSTAN COCO COLA BEVERAGE (P) LTD. REGD. OFFICE AT A.T.ROAD, PO-RRL, JORHAT-785006, ASSAM. .....Appellant Versus 1 UNION OF INDIA & ORS REP. BY THE SECRETARY, GOVT. OF INDIA, MINISTRY OF FINANCE, DEPTT. OF REVENUE, NORTH BLOCK, NEW DELHI. 2 CENTRAL BOARD OF EXCISE & CUSTOMS, GOVT. OF INDIA, MINISRY OF FINANCE, NORTH BLOCK, NEW DELHI. 3 COMMISSIONER OF CENTRAL EXCISE, MORELO BUILDING, SHILLONG. 4 ASSTT. COMMISSIONER OF CENTRAL EXCISE, DIVISION, JORHAT. .....Respondents ADVOCATES FOR THE APPELLANT: MR. P.K. GOSWAMI MR. S GANESH MR. K GOSWAMI MR. R BEZBARUAH MR. B PRASAD ADVOCATES FOR THE RESPONDENTS: CENTRAL GOVT. COUNSEL MR. K N CHOUDHURY MR. R DUBEY MS. DEKA MR. J PATOWARY MR. M DUTTA IN WRIT APPEAL NO. 7 OF 2007 ASSAM ROOFING LTD. FORMERLY KNOWN AS ASSAM ASBESTOS LTD., REGD. OFFICE AT BONDA, NARENGI, GHY, DIST. KAMRUP, ASSAM. .....Appellant Versus 1 THE UNION OF INDIA & ORS THROUGH THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF FINANCE, DEPTT. OF REVENUE, NORTH BLOCK, NEW DELHI. 2 THE COMMISSIONER OF CENTRAL EXCISE, NORTH EASTERN REGION, DEPTT. OF CENTRAL EXCISE, GOVT. OF INDIA, MORELLO BUILDING, SHILLONG, MEGHALAYA. 3 THE DY. COMMISSIONER, CENTRAL EXCISE, O/O THE ASSTT. COMMISSIONER OF CENTRAL EXCISE, G.S.ROAD, BHANGAGARH, GHY-5, ASSAM. .... Respondents ADVOCATES FOR THE APPELLANT : MRS. M HAZARIKA MS A AJITSARIA MS. A SENAPATI ADVOCATES FOR THE RESPONDENTS : MR. K N CHOUDHURY MR. R DUBEY IN WRIT APPEAL NO. 38 OF 2007 KATHARI PRODUCTS LTD. REGD. OFFICE AT 24/19, THE MALL, KANPUR,UTTAR PRADESH AND HAVING ITS UNIT/OFFICE AT A4, INDUSTRIAL ESTATE, CINNAMARA, JORHAT, ASSAM. .....Appellant Versus 1 UNION OF INDIA & ORS. REP. BY ITS SECY. TO THE GOVT. OF INDIA, MINISTRY OF FINANCE DEPTT. OF REVENUE, NORTH BLOCK, NEW DELHI. 2 THE COMMISSIONER OF CENTRAL EXCISE, MARLOW BUILDING, SHILLONG, MEGHALAYA. 3 THE COMMISSIONER OF EXCISE, DIBRUGARH. 4 THE ASSTT. COMMISSIONER, CENTRAL EXCISE, JORHAT. .....Respondents ADVOCATES FOR THE APPELLANT: MR. G N SAHEWALLA MR. S SENAPATI MD ASLAM MR. D SENA MR. M JAIN MR. K R CHOUDHURY ADVOCATES FOR THE RESPONJDENTS : MR. K N CHOUDHURY MR. J PATOWARY CENTRAL GOVT. COUNSEL IN WRIT APPEAL NO.53 OF 2007 1 M/S LUIT BUISNESS PVT. LTD. REGD. OFFICE AT S.S.ROAD, LAKHTOKIA, GUWAHATI, ASSAM, REP. BY PRADIP BHUYAN, A DIRECTOR OF THE PETITIONER COMPANY, S/O LATE TARUN CH. BHUYAN, R/O MILANPUR, CHANDMARI, GHY-21, ASSAM. 2 PRADIP BHUYAN, A DIRECTOR AND SHARE HOLDER OF THE PETITIONER CO., S/O LATE TARUN BH. BHUYAN, R/O MILANPUR, CHANDMARI, GHY-21, ASSAM. .....Appellants Versus 1 THE UNION OF INDIA & ORS REP. BY ITS SECY. TO THE GOVT. OF INDIA, MINISTRY OF FINANCE, DEPTT. OF REVENUE, NORTH BLOCK, NEW DELHI. 2 CENTRAL BOARD OF EXCISE AND CUSTOMS, GOVT. OF INDIA, MINISTRY OF FINANCE NORTH BLOCK, NEW DELHI. 3 THE COMMISSIONER OF CENTRAL EXCISE, MARLOW BUILDING, SHILLONG, MEGHALAYA. 4 THE DY. COMMISSIONER, CENTRAL EXCISSE, G.S.ROAD, BHANGAGARH, GUWAHATI-5, ASSAM. 5 ASSTT. COMMISSIONER OF CENTRAL EXCISE, G.S.ROAD, BHANGAGARH, GUWAHATI-5. 6 SUPERINTENDENT OF CENTRAL EXCISE, GUWHATI IV RANGE, BHANGAGARH, GUWAHATI-5. ..... Respondents ADVOCATES FOR THE APPELLANT : MR. S BHARALI ADVOCATES FOR THE RESPONDENTS : MR. K N CHOUDHURY MR. R DUBEY P R E S E N T HON’BLE MR. JUSTICE RANJAN GOGOI HON’BLE MR. JUSTICE HRISHIKESH ROY Date of hearing : 7.5.2009 Date of Judgment : 24.6.2009 JUDGMENT & ORDER (CAV) Ranjan Gogoi, J All these appeals having arisen out of the common order dated 21 .9.2006 passed by a learned Single Judge of this Court, were heard together and are being disposed of by this common judgment and order. 2. A recital of the relevant facts leading to the institution of th e writ petitions, out of which these appeals have arisen, has to be made at the very outset for a better appreciation of the issues involved in the present case s. With a view to provide necessary impetus to the development of i ndustries in the north-eastern region a new Industrial Policy Resolution was not ified by the Government of India on 24.12.1997. A package of incentives and conc essions was announced under the new industrial policy which, inter alia, envisag ed exemption from payment of income tax and central excise for a period of ten y ears as well as for exemption from payment of sales tax, municipal and other loc al taxes in consultation with the State Government. In the present cases, the Co urt would be concerned with the exemption from payment of central excise on indu strial activities in the north-eastern region under the Industrial Policy Resolu tion dated 24.12.1997. As exemption from payment of central excise duty can only be granted by exercise of statutory powers under the Central Excise Act, 1944, Notification No. 33/99-CE dated 8.7.99 was issued under Section 5 of the Act exe mpting goods specified in the schedule to the said Notification cleared from a u nit located in the State of Assam, Tripura, Meghalaya, Mizoram, Manipur, Nagalan d or Arunachal Pradesh, as the case may be from so much of the duty of excise l eviable thereon & &.. &.. as is equivalent to the amount of duty paid by the manuf acturer of goods from the account current maintained under Rule 9 read with Rule 173G of the Central Excise Rules, 1944. Clause 2 of the Notification dated 8.7 .99 contemplated grant of exemption by refund of duty actually paid every month upon proper verification. The new industrial units which had commenced commercia l production on and after 24.12.97 and the existing units undertaking substantia l expansion by way of increase in installed capacity by not less than 25% on or after 24.12.97 were entitled to the exemption contemplated by the Notification d ated 8.7.99. Such exemption was to be for a period not exceeding 10 years from t he date of publication of the Notification i.e. 8.7.99 or from the date of comme ncement of commercial production, whichever is later. 3. Notification No. 33/99-CE dated 8.7.99 was amended by Notificati on No. 35/01-CE with effect from 1.7.2001 in the following manner: (i) in paragraph 1, for the words, figures and letter amount of duty paid by t he manufacturer of goods from the account current maintained under rule 9 read w ith rule 173G of the Central Excise Rules, 1944 , the words, letters and figures amount of duty paid by the manufacturer of goods other than the amount of duty paid by utilization of CENVAT credit under the CENVAT Credit Rules, 2001 shall be substituted. (ii) in paragraph 2, (a) in clause(a), for the words, from the said account current the words, let ters and figures ,other than the amount of duty paid by utilization of CENVAT c redit under CENVAT Credit Rules, 2001, shall be substituted; (b) in clause (b), for the words from the account current the words, letters a nd figures , other than the amount of duty paid by utilization of CENVAT credit under the CENVAT Credit Rules, 2001, shall be substituted. . 4. A further amendment to Notification No. 33/99-CE dated 8.7.99 wi th effect from 23.12.2002 was brought about by Notification No. 61/02-CE. By the said Amendment Notification, the following proviso to Clause 2(b) of the Notifi cation No. 33/99-CE dated 8.7.99 was inserted : Provided that such refund shall not exceed the amount of duty paid less the amo unt of the CENVAT credit availed of, in respect of the duty paid on the inputs u sed in or in relation to the manufacture of goods cleared under this notificatio n. . With effect from the same date i.e. 23.12.2002, a second proviso to Rule 3(3) of the CENVAT Credit Rules, 2002 was added which is to the followi ng effect : Provided further that the CENVAT credit of the duty paid on the inputs used in the manufacture of final products cleared after availing of the exemption under the notification numbers 32/99-Central Excise, dated the Eighth July 1999[G.S.R. 508(E) dated the EighthJuly1999] and 33/99-Central Excise dated the Eighth July 1999 [G.S.R. 509(E) dated the EighthJuly1999], shall be utilized only for payme nt of duty on final products cleared after availing of the exemption under the s aid notification numbers 32/99-Cenral Excise, dated the Eighth July 1999 and 33/ 99-Central Excise, dated the Eighth July, 1999. . 5. By the Finance Act, 2003 (Section 151 read with the Seventh Sche dule) a similar proviso was added to Rule 3(3) of the CENVAT Credit Rules, 2001 w.e.f. 1.7.2001, Notification No. 33/99-CE dated 8.7.99 also stood amended by Se ction 153(1) of the Finance Act, 2003 in the manner specified in the Eighth Sche dule on and from Eighth of July, 1999 to 22nd of December, 2002 (both dates incl usive). The Eighth Schedule to the Finance Act, in effect, inserted the same ame ndment brought about in Clause 2(b) of the Notification No. 33/99-CE dated 8.7.9 9 by the Notification No. 61/02-CE with effect from 23.12.2002. In other words, Clause 2(b) of the Notification No. 33/99-CE dated 8.7.99 was amended retrospect ively with effect from 8.7.99 by the Finance Act, 2003. 6. Section 153 of the Finance Act, 2003 which brought about the afo resaid change contains certain other sub-sections of which sub-section (4) would be relevant. By virtue of the provisions contained in sub-section (4) of Sectio n 153 of the Finance Act, recovery of all amount of duty not collected or refund ed during the period 8.7.99 to 22.12.2002 which would have been collected or not refunded if the provisions of Section 153(1) had been in force during the afore said period, was contemplated. Section 153(1) and (4) along with the provisions of the Eighth Schedule to the Finance Act, the effect and purport of which has b een noticed above, may be usefully extracted hereinbelow: Section 153 (1) The notifications of the Government of India in the erst while Ministry of Finance (Department of Revenue), Nos. G.S.R. 508(E), dated the EighthJuly, 1999 and G.S.R. 509(E), dated the EighthJuly, 1999, issued under su b-section (1) of Section 5A of the Central Excise Act read with sub-section (3) of section 3 of the Additional Duties of Excise (Goods of Special Importance) Ac t, 1957 (58 of 1957) and sub-section (3) of section 3 of the Additional Duties o f Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978) by the Central G overnment shall stand amended and shall be deemed to have been amended in the ma nner as specified in the Eighth Schedule, on and from the Eighthday of July, 199 9 to the 22nd day of December, 2002 (both days inclusive) retrospectively, and a ccordingly, notwithstanding anything contained in any judgment, decree or order of any court, tribunal or other authority, any action taken or anything done or purported to have been taken or done under the said notifications, shall be deem ed to be and always to have been, for all purposes, as validly and effectively t aken or done as if the notifications as amended by this sub-section had been in force at all material times. & & & & & & & & & & & & & & & & & & & & & & & & &.. & & & & & & & & & & & & & & & & & & & & & & & & &.. & & & & & & & & & & & & & & & & & & & & & & & & &.. Section 153 (4) Notwithstanding the cessation of the amendment under sub-section (1) on the 22nd day of December,2002, recovery shall be made of all amounts of duty or interest or other charges which have not been collected or, as the case may be, which have been refunded but which would have been collected or, as the case may be, which would not have been refunded if the provisions of this sectio n had been in force at all material times, within a period of thirty days from t he day on which the Finance Bill, 2003 receives the assent of the President, and in the event of non-payment of duty or interest or other charges so recoverable , interest at the rate of fifteen percent, per annum shall be payable, from the date immediately after the expiry of the said period of thirty days, till the da te of payment Explanation.-For the removal of doubts, it is hereby declared that no ac t or omission on the part of any person shall be punishable as an offence which would not have been so punishable if the notifications referred to in sub-sectio n (1) had not been amended retrospectively by that sub-section. . THE EIGHTH SCHEDULE Notification No. and date-G.S.R. 509(E), dated the EighthJuly, 1999 [33/1999-Cen tral Excise, dated the EighthJuly, 1999] Amendment :- In the said notification, in paragraph 2, in clause (b), the fol lowing proviso shall be inserted, namely :- Provided that such refund shall not exceed the amount of duty paid less the amount of the CENVAT credit availed of, in respect of the duty paid on the inputs used in or in relation to the manufacture of goods cleared under this not ification. . 7. There is yet another Notification i.e. Notification No. 65/03-CE dated 6.8.2003 which must be noticed. By the aforesaid Notification dated 6.8.2 003, the Notification No. 33/99-CE dated 8.7.99 was further amended by insertion of paragraph 1(A) which provides that the exemption contained in Notification N o. 33/99-CE dated 8.7.99 shall be available only if the manufacturer utilizes th e whole of the CENVAT credit available to him on or before the last day of the m onth under consideration for payment of duty on goods cleared during such month and pays only the balance amount in cash. There are other amendments to the Noti fication No. 33/99-CE dated 8.7.99 effected by the Notification No. 65/03-CE dat ed 6.8.2003 which are not being noticed as the same would not be very relevant f or the present consideration. 8. Paragraph 1(A) inserted by the aforesaid amendment may be useful ly extracted hereinbelow: 1A. In cases where all the goods produced by a manufacturer are eligible for ex emption under this notification, the exemption contained in this notification sh all be available subject to the condition that, the manufacturer first utilizes whole of the CENVAT credit available to him on the last day of the month under c onsideration for payment of duty on goods cleared during such month and pays onl y the balance amount in cash. . 9. From the above, it appears that the Notification No. 33/99-CE da ted 8.7.99 initially contemplated exemption of goods specified in the schedule a ppended to the Notification from so much of the duty of excise leviable thereon & & & & & & & & & & &.. as is equivalent to the amount of duty paid by the manufa f goods from the account current maintained under rule 9 read with rule 173G of the Central Excise Rules, 1944 . By the amendment made with effect from 1.7.200 1 by Notification No. 35/2001-CE in paragraph 1, 2(a) and (b) of Notification No .33/99-CE, exemption of excise duty leviable was made equivalent to the amount o f duty paid by the manufacturer other than the amount of duty paid by utilizing the CENVAT credit. In other words, the duty paid by utilizing CENVAT credit beca me dis-entitled for exemption and the consequential refund in accordance with th e scheme contained in the Notification No. 33/99-CE dated 8.7.99. By the Notific ation No. 61/02-CE dated 23.12.2002, a proviso was incorporated in Clause 2(b) o f the Notification No. 33/99-CE dated 8.7.99 making it clear that the refund to be granted shall not exceed the amount of duty paid less the amount of CENVAT c redit availed of in respect of duty paid on the inputs used in or in relation to manufacture of goods cleared under the Notification No. 33/99-CE dated 8.7.99 . 10. The proviso to Clause 2(b) of the Notification No. 33/99-CE date d 8.7.99 initially inserted with effect from 23.12.2002 by the Notification No. 61/02-CE stood inserted in the said Notification with effect from 8.7.99 and upt o 22.12.2002 by Section 153(1) of the Finance Act, 2003. The provisions containe d in sub-section (4) of Section 153 of the Finance Act, 2003 contemplated recove ry of duty not collected or wrongly refunded. Such recovery was contemplated as if the proviso to Clause 2(b) of the Notification No. 33/99-CE dated 8.7.99 had been in force during the material time i.e. 8.7.99 to 22.12.2002 though the same had actually been brought in by Section 153(1) of the Finance Act, 2003. By ins ertion of paragraph 1(A) to the Notification No.33/99-CE by the Notification No. 65/03 -CE dated 6.8.2003 it was made clear that to avail exemption under Notifi cation No. 33/99-CE dated 8.7.99 a manufacturer must first utilize all available CENVAT credit for payment of duty, whereafter, the balance duty, if any, is to be paid in cash. 11. Acting on the basis of the aforesaid changes in the Notification No. 33/99-CE dated 8.7.99 by the Finance Act, 2003, the jurisdictional Deputy/A ssistant Commissioners of Central Excise, Guwahati, Jorhat and Shillong Range ha d issued a series of orders dated 2nd, 3rd and 4th June, 2003. By the aforesaid orders, the jurisdictional Deputy/Assistant Commissioners had undertaken a revie w of the refund sanctioned to the concerned manufacturers during the period 8.7. 99 to 22.12.2002, in the light of the provisions contained in Section 153(1) and (4) of the Finance Act, 2003 read with the provisions contained in the Eighth S chedule to the said Finance Act. Thereafter, the concerned Deputy/Assistant Com missioners had directed the manufacturers in question to return the amounts equi valent to unutilized CENVAT credit available in their accounts from the amount o f refund sanctioned under the Notification No. 33/99-CE dated 8.7.99. The afores aid orders constitute the substance of the challenge made in the writ petitions which having been negated by the learned Single Judge, the present appeals have been filed. 12. In two of the appeals i.e. W.A. No. 408 and 410 of 2006, the com plexion of the challenge is somewhat different. In the said two cases, the conce rned manufacturers are aggrieved by the orders dated 5.2.2003 and 21.1.2003 pass ed by the Deputy Commissioner of Central Excise, Guwahati by which CENVAT credi t allowed to the manufacturers during the relevant period i.e. 23.12.2002 to 31. 12.2002 has been adjusted against the duty payable and the amount of refund sanc tioned for the month of December, 2002 has been proportionately reduced. 13. We have heard Sri P.K. Goswami, learned senior counsel for the a ppellants in W.A. No. 435/06 as well as Dr. A.K. Saraf, learned senior counsel f or the appellants in W.A. Nos. 401/06, 402/06, 403/06, 404/06, 405/06, 406/06, 4 07/06, 408/06, 409/09, 410/06, 411/06, 412/06, 413/06 and 429/06 ; Mr GN Sahewal la, learned senior counsel for the appellant in W.A. No. 38/07; Mrs. M Hazarika, learned senior counsel for the appellant in W.A.No. 7/07 and Mr S Bharali, lear ned counsel for the appellant in W.A No. 53/07. We have also heard Sri. K.N. Cho udhury, learned senior counsel appearing on behalf of the respondents. 14. Sri P.K. Goswami, learned senior counsel for the appellants in W .A. No. 435/06 has submitted that initially the exemption and the consequential refund under Notification No. 33/99-CE dated 8.7.99 was in respect of duty paid from the current account of the assessee either in cash or in some other authori zed form or by way of adjustment of CENVAT credit. The position was altered by t he Notification No. 35/01-CE with effect from 1.7.2001 from which date the duty paid by utilization of CENVAT credit became ineligible for exemption and refund. According to Sri Goswami, by Notification No. 61/02-CE dated 23.12.2002 as well as by the amendment of the CENVAT Credit Rules, 2002 by the Notification No. 42 /02-CE dated 23.12.2002, two changes were made. CENVAT credit became available f or payment of duty only on exempted goods covered by the Notification No. 33/99- CE dated 8.7.99 and secondly, refund under the said Notification was to be made only in respect of Central Excise duty paid in cash or some other authorized man ner. Both the aforesaid Notifications are prospective which position, however, h as been changed by the Finance Act, 2003, specifically by the provisions contain ed in Section 153 read with the Eighth Schedule to the said Act. According to Sr i Goswami, what was brought about by the Notification No. 61/02-CE dated 23.12.2 002 for the period after 23.12.2002 as well as by the Finance Act, 2003 for the period 8.7.99 to 22.12.2002 is that if a manufacturer had utilized CENVAT credi t for payment of central excise duty and had obtained refund of the whole amount paid including the amount paid by adjustment of CENVAT credit or in a situation where the manufacturer has utilized CENVAT credit for payment of duty on non-ex empted items, recovery of the refund made or realization of duty not collected i s contemplated by Section 153(4) of the Finance Act, 2003. Sri Goswami has submi tted that a situation where a manufacturer has got refund of the duty component paid by adjustment of CENVAT credit would fall under the category of cases wher e refund would not have been granted if the provisions of the Eighth Schedule ha d been incorporated in the Notification No. 33/99-CE dated 8.7.99 during the mat erial period. Therefore, the said refund would be liable to be recovered under S ection 153(4) of the Finance Act, 2003. Similarly, where a manufacturer had util ized CENVAT credit for payment of duty on non-exempted goods such a situation wo uld be an instance where duty had not been collected and, therefore, would be l iable to be levied and realised. Beyond the aforesaid two situations nothing els e is contemplated by the Finance Act, 2003. Sri Goswami has also submitted that the overall effect of the amendments to the Notification No. 33/99-CE dated 8.7. 99 is that the exemption and the consequential refund would be available only fo r actual duty paid and not in respect of duty paid by adjustment of CENVAT credi t. It is only upon issuance of the Notification No. 65/03-CE dated 6.8.2003 that provisions were made to the effect that a manufacturer, to be entitled to exemp tion under Notification No. 33/99-CE dated 8.7.99, must first exhaust available CENVAT credit in his account and pay the balance, if any, in cash. The Notifica tion No. 65/03-CE dated 6.8.2003, according to Sri Goswami, is clearly prospecti ve. The learned counsel has, therefore, argued that the above being the purport and effect of the various Notifications issued from time to time amending Notifi cation No. 33/99-CE as also Section 153 of the Finance Act read with the Eighth Schedule thereof, the jurisdictional Deputy/Assistant Commissioners were not at all authorized to issue the impugned order dated 3.6.2003 in the case of the app ellant in W.A. No. 435/06. Referring to the tabulation enclosed to the said orde r, Sri Goswami has submitted that what was refunded to the appellant was the amo unt of duty paid by him in cash. The appellant though had CENVAT credit availabl e in his account, did not utilize the same for payment of duty. This was permiss ible till the time when the Notification No. 65/03-CE dated 6.8.2003 was issued. If that be so, according to Sri Goswami, the concerned Deputy/ Assistant Commis sioners could not have required the appellant company to cause return of the amo unt of Rs. 2,20,18,124/-which constituted the unutilized available credit in th e account of the appellant. Sri Goswami has specifically argued that the Eighth Schedule to the Finance Act, 2003 clearly provides that the amount of refund sha ll not exceed the amount of duty paid less the amount of CENVAT credit availed o f. In the present case on the basis of the figures provided by the department in the enclosure to the impugned order dated 3.6.2003, admittedly, the amount of R s. 2,20,18,124/- demanded by the impugned order dated 3.6.2003 had not been avai led of by the appellant for payment of duty. Rather, the figures provided by the department shows that an amount of Rs. 23,84,826/- only had been utilized by th e appellant from the CENVAT credit account for payment of duty. The said amount of Rs.23,84,826/- has not been refunded. In such circumstances, when the CENVAT credit has not been availed of for payment of duty, the jurisdictional Assistan t Commissioner had gone grossly wrong in demanding return of the amount equivale nt to the total CENVAT credit available in the account of the appellant. The act ion taken is beyond what had been contemplated by Section 153 of the Finance Act , 2003 and the Eighth Schedule thereto. 15. Sri Goswami has also introduced in his argument, an altogether d ifferent perspective unconnected with the first limb of the argument which has b een noticed above. The learned counsel has submitted that it is difficult to dis cern the basis of the impugned demand made in the order dated 3.6.2003 of the As sistant Commissioner. If the said demand is on account of central excise duty, t he same is patently wrong as the goods manufactured by the appellant Company in the present case are clearly exempted by the Notification No. 33/99-CE dated 8.7 .99. If the demand is on account of unutilized CENVAT credit, the same is equall y unauthorized as the amount of CENVAT credit granted to the appellant constitut ed the duty paid on the inputs which is in the custody of the Government. Theref ore, according to the learned counsel, the impugned order dated 3.6.2003 virtua lly represents a second or a repeat demand of central excise duty on inputs alre ady paid by the appellant for which it has been given due credit in its CENVAT a ccount. 16. Lastly, Sri Goswami has argued that in the present case no finan cial prejudice has been caused to the Revenue so as to enable it to seek return of the part of the refunded amount in question. Sri Goswami has sought to explai n the above position by giving illustration of a situation where a manufacturer has a duty liability of Rs. 100/-. Until 6.8.2003, according to Sri Goswami, the manufacturer had the option of clearing the said duty by cash payment of the en tire amount of Rs. 100/-, in which case, he was entitled refund of the amount pa id i.e. Rs. 100/-. The second option for the manufacturer was to pay a part of t he duty liability, say Rs. 50/- in cash and adjust the CENVAT credit for the rem ainder. In that event the manufacturer would be entitled to refund of Rs. 50/- a nd his CENVAT credit would have stood debited by Rs. 50/-. In either of the situ ations, refund is of what the manufacturer pays in cash. No other amount is invo lved in the refund component. In such circumstances, according to Sri Goswami, m erely because a manufacturer had not used the CENVAT credit available to him and had chosen to pay the entire duty amount by cash, which had been refunded to hi m, the Revenue will not have any legal authority to demand return of the amount equivalent to the CENVAT credit available but not utilized. Such a course of act ion, according to Sri Goswami, would cast an onerous besides unwarranted obligat ion on the manufacturer. In this regard, the decision of the Apex Court reported in 2005 (179) ELT 276 (SC) [ Commissioner of Central Excise & Customs, Vadodara -vs- Narmada Chematur Pharmaceuticals Limited] has been relied upon. 17. Dr. A.K. Saraf, Mr. GN Sahewalla, Mrs M Hazarika and Mr S Bharal i, learned counsels appearing on behalf of the appellants in the other cases hav e adopted the arguments advanced by Sri P.K. Goswami, learned senior counsel. In fact, the Court has noticed that in some of the writ petitions the validity of Section 153 of the Finance Act had been put to challenge. However, in the course of hearing of the present cases, no argument has been advanced on the aforesaid score or any other issue, save and except what has been noticed above. 18. The arguments advanced on behalf of the appellants have encounte red stiff resistance from the arguments advanced by Sri K.N. Choudhury, learned senior counsel for the respondents. Sri Choudhury has contended that the meaning of the expression Provided that such refund shall not exceed the amount of dut y paid less the amount of the CENVAT credit availed of, in respect of the duty p aid on the inputs used in or in relation to the manufacture of goods cleared und er this notification contained in the Notification No. 61/02-CE dated 23.12.200 2 as well as in the Eighth Schedule to the Finance Act, 2003 cannot be understoo d to mean anything else but that the amount of refund shall not exceed the amoun t of duty paid minus the total CENVAT credit available to a manufacturer regardl ess of whether he has utilized such credit for payment of duty or not. Laying em phasis on the expression ’availed of’, Sri Choudhury has submitted that the said expression means the total CENVAT credit granted to a manufacturer on the basis of the duty paid by him on the inputs regardless of utilization of such credit. This, according to Sri Choudhury is the basis of the demand contained in the im pugned orders. Regarding the Notification No. 65/03-CE dated 6.8.2003, it is the contention of Sri Choudhury that the same is a clarificatory Notification expre ssing in clear and unambiguous terms the purport and effect of Section 153 of th e Finance Act, 2003 and the Notification No. 61/02-CE dated 23.12.2002. Reliance has also been placed on a judgment of the Apex Court in the case of Commissione r of Income Tax, Bombay & Ors. -vs- Podar Cement Pvt. Ltd. & Ors., reported in ( 1997) 5 SCC 482. Sri Choudhury has also submitted that the aforesaid provisions of the Finance Act and the Notification No. 61/02 had cast upon a manufacturer a n obligation to use the CENVAT credit for payment of duty. If such obligation ha d been discharged by the manufacturer, the CENVAT credit account would have stoo d proportionately reduced which is the real purport of the provisions of Section 153 of the Finance Act, 2003 and the Notification No. 61/02. Sri Choudhury has urged that it is a declared policy of the State, in the light of the experience gathered from the working of the Notification No. 33/99-CE dated 8.7.99, that av ailable CENVAT credit should be utilized to the extent available and a manufactu rer should not be allowed to accumulate credit for use at any time, even after t he period of exemption is over, as such utilization may have adverse consequence s on the finances of the State. The Notification No. 65/03 dated 6.8.2003 merely clarified the aforesaid position, according to Sri Choudhury. 19. The power and competence of the authority to issue the impugned demand notices under the provisions of Section153 of the Finance Act, 2003, read with the 8th Schedule thereof would require the Court to determine the precise meaning of the proviso to Clause-(b) of para-2 of the Notification No.33/99-CE d ated 8.7.1999. Whether under the aforesaid proviso refund of duty is not to incl ude the CENVAT Credit utilized by a manufacturer or is it the unutilized credit available in his account, as a whole, that cannot be included is the moot questi on. The scope of the power under Section 153(4) of the Finance Act, 2003 to reco ver the refund granted is another issue that has to be dealt with by the Court. Closely connected with the said question is the concept of unjust enrichment of the State, if it is allowed to make the impugned recovery, as has been sought to built-up on behalf of the petitioners. 20. The proviso to Clause-(b) of Para-2 of the Notification No.33/99 -CE dated 8.7.1999 provides that the refund which is contemplated in para-2 of t he said notification is not to exceed the amount of duty paid minus the amount o f CENVAT credit availed of in respect of duty on the inputs &. . The proviso has to be read in juxtaposition with the main part of paragraph 2 of the Notificati on in question. Para-2 provides for refund of the duty paid other than the amoun t of duty paid by utilization of CENVAT Credit. The proviso inserted subsequentl y, however, provides that the refund amount shall not exceed the amount of duty paid less the amount of CENVAT Credit available of in respect of duty paid on in puts used in the manufacture of goods cleared under Notification No.33/99. The p roviso, therefore, qualifies the meaning of the main part of para-2 and explains the limits of the refund that can be granted under the main part. There can be, therefore, no doubt that para-2 of the Notification No.33/99-CE dated 8.7.99 re ad with the proviso, makes it abundantly clear that the duty that is refundable under the said notification is not to include the CENVAT Credit available in the account of a manufacturer regardless of the fact whether such credit has been u tilized by the manufacturer or not. 21. A perusal of the pleadings contained in the writ petitions indic ate that in almost all the writ petitions except Writ Appeal No.435 of 2006, the re are clear and categorical averments made by the writ petitioners that once th e proviso to Clause-(b) of Para-2 of the Notification No.33/99-CE dated 8.7.99 w as brought into effect from 23.12.2002 the petitioners had started utilizing the available CENVAT Credit by bringing the account to nil as on 31.3.2003. The abo ve fact also indicates that the understanding of the petitioners with regard to the purport and effect of the proviso had been what has been indicated above. C onsequently, on the clear language of the proviso to Clause-(b) of para-2 of the Notification No.33/99-CE dated 8.7.1999 and also on the basis of understating o f the petitioners with regard to the meaning of the said proviso, as stated in t he writ petitions, the Court is of the view that by virtue of the proviso to Cla use-(b) of Para-2 of the Notification No.33/99-CE dated 8.7.1999 the refund of d uty paid could not have included the CENVAT credit available to a manufacturer w hich, though available, was not utilized for payment of duty. 22. This will take the Court to a consideration of the provisions of Section 153 of the Finance Act, 2003. Sub-section (1) of Section 153 engrafted the proviso to Clause-(b) of para-2 of the Notification No.33/99-CE dated 8.7.19 99 in the said Notification w.e.f. 8.7.1999 and had kept the said proviso in ope ration upto 22.12.2002 whereafter the proviso continued to remain in force by vi rtue of Notification No.61/2002-CE dated 23./12.2002. Sub-Section(4) of Section 153 contemplated recovery of duty not collected or wrongly refunded during the p eriod of absence of the proviso to Clause-(b) of para-2 of the Notification No.3 3/99-CE dated 8.7.1999 i.e. during the period 8.7.1999 to 22.12.1999 ( the provi so was brought in retrospectively by the Finance Act, 2003). To understand the s cope of the power of recovery of duty not collected, as contemplated by sub-sect ion (4) of Section 153 of the Finance Act, 2003, it will be necessary to briefly recollect the provisions of the Notification No.42/2002-CE (NT) dated 23.12.200 2, noticed earlier, by which a proviso (renumbered as the second proviso after c oming into force of the first proviso w.e.f. 1.4.2003) was added to Rule-3(3) of the CENVAT Credit Rules. 2002. By the aforesaid proviso, as already noticed, it was made clear that CENVAT credit obtained by payment of duty on inputs used in the manufacture of final products cleared after availing of the exemption under Notification No.33/99-CE dated 8.7.1999, can only be utilized for payment of du ty on final products covered by the said notification. The effect of the inserti on of the said proviso in Rule 3(3) of the Central Credit Rules, 2002 is that CE NVAT credit earned by payment of duty on inputs used in the manufacture of final products covered by the Notification No.33/99-CE dated 8.7.1999 could not have been used for payment of duty on goods except those exempted by the Notification No.33/99-CE dated 8.7.1999. By the provisions of Section 151(1) read with the 7 th Schedule of the Finance Act, 2003, the very same proviso, inserted by the not ification No.42/2002-CE(NT) dated 23.12.2002 was inserted in Rule 3(3) of the CE NVAT Credit Rules of 2001 with effect from 1.7.2001 (the date of coming into for ce of the CENVAT Credit Rules, 2001). In the absence of the aforesaid proviso in the CENVAT Credit Rules, 2001, duty may have been paid on non-exempted goods by utilization of the CENVAT credit earned by payment of duty on inputs used in th e manufacture of exempted goods. Once the said proviso was brought into force re trospectively by the Finance Act, 2003, payment of such duty became unauthorized and, therefore, open to fresh collection and levy. Such fresh collection and le vy has been authorized by the provisions of sub-section (4) of Section 153 of th e Finance Act, 2003. 23. The question of recovery of refund granted during the period 8.7 .1999 to 22.12.2002, when the proviso to Clause-(b) of para-2 of the Notificatio n No.33/99-CE dated 8.7.1999 was not in force (the same having been brought in r etrospectively by the Finance Act, 2003) may now be answered. The argument of th e petitioners that such refund can only be in respect of CENVAT credit utilized, if any such amount had been refunded, and the same cannot include accumulated C ENVAT credit proceeds on an interpretation of the meaning of Clause-(b) of Para- 2 of the Notification No.33/99-CE dated 8.7.1999, which has been found to be una cceptable by us. If the amount of refund could not have included the available C ENVAT credit not utilized by the manufacturer, a conclusion already reached by u s earlier, naturally any refund which included the said component, if made to th e manufacturer, would be refund wrongly granted and, hence, recoverable under su b-section (4) of Section 153 of the Finance Act. 24. However, an argument has been made that recovery of such refund would result in unjust enrichment of the State and a resolution in such a situat ion must be made by adjustment of the available CENVAT credit and at the same ti me, by allowing the manufacturer to retain the amount sought to be recovered as, in the last alternative, the refund being of what has been paid by the manufact urer, the situation is revenue neutral i.e. having no adverse effect on the reve nue. Reliance in this regard has also been placed on a judgment of the Apex Cour t reported in 2005(179) ELT Pg.276 (S.C.) 25. Notwithstanding the absence of any effective answer on behalf of the revenue to the above question, the argument advanced would require a very c lose look. The argument, at first blush, would appear to be attractive and may i ndicate that the obvious course of action should be to debit the CENVAT credit a ccount of the manufacturer to the extent of accumulated credit and, thereafter, allow the manufacturer to retain the portion of the refunded amount which is rel atable to such accumulated credit. Such retention may also appear to be justifie d as what had been refunded is the money paid by the manufacturer and such refun d is not from the general revenue of the State. 26. However, on close scrutiny, it appears to the Court that debitin g the CENVAT credit account of the manufacturer at the stage when the provisions of Section 153 of the Finance Act, 2003 came into force was not possible. Such a course was not possible for two reasons. Firstly, because the petitioners had utilized all the available CENVAT credit in their account after coming into forc e of the proviso to Clause-(b) of Para-2 of the Notification No.33/99-CE dated 8 .7.1999 with effect from 23.12.2002. Secondly, after 1.4.2003, by virtue of the proviso to Rule 3(3) of the CENVAT Credit Rules, 2002, inserted by Notification No.13/03-CE(NT) dt. 1.3.2003 such debit became legally impermissible. In-fact, same was the position with regard to utilization of CENVAT Credit for payment of duty since the coming into force of the CENVAT Credit Rules, 2001. 27. The aforesaid proviso which came into effect from 1.4.2003 is to the following effect :- Provided that while paying duty, the CENVAT credit shall be utilized only to th e extent such credit is available on the last day of the month for payment of du ty relating to the month. . 28. If by the aforesaid proviso, utilization of CENVAT credit availa ble on the last date of the month is permitted for payment of duty relating to t he month, obviously the goods in respect of which duty can be paid by utilizatio n of the CENVAT credit has to be those cleared in the course of the month and no t goods cleared in any preceding period. 29. Therefore, debiting of the CENVAT credit account of the manufac turer on the date when the Finance Act of 2003 came into force i.e. 14.5.2003 wa s factually not possible and legally not permissible. At the same time, retentio n of the amount of refund equivalent to the amount of available CENVAT credit du ring the period 8.7.1999 to 22.12.2002 became unlawful and unauthorized under th e Notification No.33/99-CE dated 8.7.1999. It is recovery of such unauthorized r efund that has been contemplated by Section 153(4) of the Finance Act, 2003. 30. It is possible that the provisions of Section 153(4) of the Fina nce Act, in so far as recovery of refund is concerned, may appear to be somewhat inequitable. However, equitable considerations cannot have any role to play wh ile determining the revenue implications and duty liability of a manufacturer un der the law in force. Such implications and liabilities have to be construed str ictly and within the four-corners of the provisions of law. Though in some of th e present cases a challenge has been made to the validity of Section 153 of the Finance Act, such challenge had not been urged at the hearing. The Court, theref ore, cannot go into the said question and must understand the challenge to have been abandoned. Unless the Court is in a position to examine the validity of Sec tion 153 of the Finance Act, no opinion can be expressed on the said issue. 31. Consequently, the impugned orders are held to be legally sustain able. The appeals are accordingly dismissed. In the facts and circumstances of t he case we, however, make no order as to costs. Naturally, the present order wil l not be understood to have foreclosed the remedy of the petitioners, if any, un der Section 11 B of the Central Excise Act, 1944. "