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MODVAT – REFUND OF THE SAME WITH INTEREST AFTER 30 DAYS – the company is liable to pay MODVAT under Central Excise Act on HSD oil used in manufacturing yarns etc., and also liable to pay interest as it was not refunded with in 30 days of notice as the exemption granted to HSD oil was withdrawn by a Notification by central Govt. – High court wrongly find a fault on the government – allowed the writs – Apex court set aside the orders as there is no challange abount the vlaidity of notification or about sec.112 of Finance Act – they can not escape liability to refund the availd MODVAT with interest DESPITE OF NOTIFICATION = Union of India & Ors. Appellants Versus Maharaja Shree Umaid Mills Respondent = published in / cited in / Reported in judis.nic.in/supremecourt/filename=41098

 

 

English: Central Excise India

English: Central Excise India (Photo credit: Wikipedia)

 

MODVAT –  REFUND OF THE SAME WITH INTEREST AFTER 30 DAYS –    the company is liable to pay MODVAT under Central Excise Act on HSD oil used in manufacturing yarns etc., and also liable to pay interest as it was not refunded with in 30 days of notice as the exemption granted to HSD oil was withdrawn by a Notification by central Govt. – High court wrongly find a fault on the government – allowed the writs – Apex court set aside the orders as there is no challange abount the vlaidity of notification or about sec.112 of Finance Act – they can not escape liability to refund the availd MODVAT with interest  DESPITE OF NOTIFICATION =

 

  

 

whether the company is liable to pay MODVAT under Central Excise Act on HSD oil used in manufacturing yarns etc., and also liable to pay interest as it was not refunded with in 30 days of notice as the exemption granted to HSD oil was withdrawn by a Notification by central Govt. ?

 

 

 

 

 

The respondent-assessee,

 

   Maharaja Shree  Umaid  Mills,  whose  case  is  being  considered,  is  a

 

   manufacturer of yarn and fabrics, which are covered under Chapters 52, 54

 

   & 55 of the Schedule to the Central Excise  Tariff  Act,  1985.   In  the

 

   process of the  manufacture of yarn and fabrics, the  respondent-assessee

 

   uses High Speed Diesel Oil (hereinafter to as the ‘HSD Oil’) as fuel  for

 

   generation of electricity i.e. power, with which  manufacturing  unit  of

 

   the respondent is operated.

 

5. As the HSD oil is being used as an input in the process of generation  of

 

   electricity so as to manufacture the final produce i.e. yarn and fabrics,

 

   the respondent was claiming the MODVAT credit of the duty paid on the HSD

 

   oil used as an input under the provisions of Rules 57A  and  57B  of  the

 

   Rules.

 

6. The Central Government issued a Notification on 16th March, 1995  whereby

 

   MODVAT credit of the duty paid on the HSD  Oil  as  an  input,  had  been

 

   withdrawn.  It is not in dispute that the MODVAT credit of the duty  paid

 

   on the use of the HSD Oil was available in the past but the same had been

 

   withdrawn by the said Notification issued  in  1995.   Subsequently,  the

 

   office of the Commissioner of the Central Excise had also issued a  Trade

 

   Notice on 7.4.1997 to the effect that no MODVAT Credit in respect of  the

 

   duty paid on the HSD oil used as an input would be available  under  Rule

 

   57A and 57B of the Rules.

 

 

 

 It is also pertinent to note that the validity of  Section  112  of  the

 

   2000 Act  had  not  been  challenged  in  the  petitions  filed   by  the

 

   respondents and therefore, we need not go into the legality of  the  said

 

   Section. 

 

 By  virtue  of  the

 

   Notifications issued on 01.03.1994 and 16.03.1995 issued under  Rule  57A

 

   of the Rules, the  Central  Government  had  specifically  declared  that

 

   MODVAT credit on the HSD oil used as an input would not be  available  as

 

   the said item had been specifically excluded from the  list  of  eligible

 

   exempted inputs.  In spite of  the  said  fact,  several  assessees  were

 

   claiming MODVAT credit in respect of the HSD oil used  as  an  input  and

 

   therefore, Section 112 of the 2000 Act had to be enacted.   Thus,  it  is

 

   clear that the said Section had been enacted so as to  see  that  no  one

 

   claims MODVAT credit in respect of the HSD Oil used as an input and those

 

   who had wrongfully availed MODVAT credit in respect of the HSD  oil  used

 

   as an input and those who had claimed the credit wrongfully,  return  the

 

   said amount within 30 days from the date the President  gives  assent  to

 

   the 2000 Act. This clearly denotes that by virtue of  the  provisions  of

 

   Section 112 of the 2000 Act, MODVAT credit availed on the HSD oil used as

 

   an input had not been withdrawn for the first time but  it  was  declared

 

   that if anybody had availed MODVAT credit on  the  HSD  oil  used  as  an

 

   input, will have to return it within 30 days  and  in  case   the  amount

 

   being not refunded within 30  days,  the  amount  of  the  MODVAT  credit

 

   wrongfully availed by the concerned assessee  had  to  be  returned  with

 

   interest at the rate of 24% p.a.  

 

 

 

Once it is certain that the MODVAT credit had been  wrongly

 

   availed by the respondents, in our opinion, the Revenue cannot be blamed,

 

   if the amount wrongly availed by way of MODVAT credit by the  respondents

 

   is recovered with interest thereon. 

 

It is also pertinent to note that the

 

   Revenue had given 30  days’  time  to  return  the  said  amount  to  the

 

   respondents who had wrongly availed MODVAT credit on the HSD oil used  as

 

   an input.  

 

If anyone who had repaid the amount wrongly availed within  30

 

   days from the date  on  which  Section  112  of  the  2000  Act  got  the

 

   President’s assent, that assessee had not to  pay  any  interest  on  the

 

   amount of duty availed by him wrongly.  

 

But those  who  had  availed  the

 

   MODVAT credit on the HSD oil used as an input and did not return the said

 

   amount even within 30 days from the date on which the President had given

 

   assent to the enactment of Section 112 of the 2000 Act, had to return the

 

   amount wrongfully retained by them with interest at the rate of 24%  p.a.

 

   

 

In our opinion, such a course, adopted by the Revenue for recovery of the

 

   amount which was legitimately claimed by the Revenue, cannot be  said  to

 

   be bad in law.

 

 

 

 

 

30. In the circumstances and for the reasons recorded  hereinabove,  we  are

 

   of the view that the High Court committed an error by not considering the

 

   aforestated factors and therefore, we quash and set  aside  the  impugned

 

   judgment by allowing these appeals with no order as to costs.   The  stay

 

   granted is vacated.

 

 

 

REPORTABLE

 
IN THE SUPREME COURT OF INDIA

 

CIVIL APPELLATE JURISDICTION

 

CIVIL APPEAL NO. 5634 OF 2008

 
Union of India & Ors. Appellants

 

Versus

 
Maharaja Shree Umaid Mills Respondent
With

 

C.A. No. 5635/2008, C.A. No. 5636/2008, C.A. No. 5922/2008, C.A. No.
6506/2008, C.A. No. 11175 OF 2013 @ SLP (C) No. 28055 /2008, C.A. No.
6886/2008, C.A. No. 906/2009, C.A. No. 895/2009, C.A. No. 1296/2009
AND C.A. No. 11174 OF 2013 @ SLP (C) No. 938/2010

 

 

 
1 J U D G M E N T

 

 

 
1 ANIL R. DAVE, J.

 

 

 

1. Leave granted in SLP (C) No 28055 of 2008 and SLP (C) No. 938 of 2010.
2. As a common question of law is involved in all these appeals, at the
request of the learned counsel appearing for the parties, all the appeals
were heard together and they are decided by this common judgment.
3. The issue involved in all these appeals is with regard to the liability
to pay interest under the provisions of Section 112 of the Finance Act,
2000 (hereinafter referred to as ‘the 2000 Act’), which pertains to
liability of the assessee to pay interest under the Central Excise Rules,
1944 (hereinafter referred to as ‘the Rules’). The facts of Civil Appeal
No.5634 of 2008 (Union of India and others vs. Maharaja Shree Umaid
Mills) are taken into consideration for better understanding of the issue
involved in all these appeals.
4. All these appeals have been filed by the Union of India against the
respondents under the Central Excise Act, 1944. The respondent-assessee,
Maharaja Shree Umaid Mills, whose case is being considered, is a
manufacturer of yarn and fabrics, which are covered under Chapters 52, 54
& 55 of the Schedule to the Central Excise Tariff Act, 1985. In the
process of the manufacture of yarn and fabrics, the respondent-assessee
uses High Speed Diesel Oil (hereinafter to as the ‘HSD Oil’) as fuel for
generation of electricity i.e. power, with which manufacturing unit of
the respondent is operated.
5. As the HSD oil is being used as an input in the process of generation of
electricity so as to manufacture the final produce i.e. yarn and fabrics,
the respondent was claiming the MODVAT credit of the duty paid on the HSD
oil used as an input under the provisions of Rules 57A and 57B of the
Rules.
6. The Central Government issued a Notification on 16th March, 1995 whereby
MODVAT credit of the duty paid on the HSD Oil as an input, had been
withdrawn. It is not in dispute that the MODVAT credit of the duty paid
on the use of the HSD Oil was available in the past but the same had been
withdrawn by the said Notification issued in 1995. Subsequently, the
office of the Commissioner of the Central Excise had also issued a Trade
Notice on 7.4.1997 to the effect that no MODVAT Credit in respect of the
duty paid on the HSD oil used as an input would be available under Rule
57A and 57B of the Rules.
7. What is relevant here is that the respondent as well as other assessees-
respondents, whose cases are being decided by this common judgment, had
availed the MODVAT credit of the duty paid on the HSD Oil, which was used
as an input even though it was not permissible in view of the aforestated
Notification followed by the Trade Notice. So it is not in dispute that
though MODVAT credit was not to be availed in respect of the duty paid on
the HSD oil used as an input, all the assessees who are respondents, had
availed the MODVAT credit.
8. In the aforestated circumstances, show cause notices had been issued to
all the respondents calling upon them as to why the MODVAT credit availed
by them during the period for which they were not entitled to such a
credit, should not be withdrawn and why interest at the rate of 24% p.a.
be not charged on the amount of credit already availed by them.
9. It is pertinent to note that in the meantime Section 112 of the 2000 Act
had been enacted and by virtue of which, interest at the rate of 24% p.a.
had to be paid on the MODVAT credit wrongfully availed by the respondents
in respect of the duty paid on the HSD Oil used as an input for a
particular period. Similarly, Rule 57 (I) of the Rules also enables the
Revenue to recover interest on the amount of MODVAT credit wrongfully
availed by the assessee.
10. The case of the Revenue is that by virtue of the provisions of
Section 112 of the 2000 Act, interest becomes payable on such wrongfully
availed MODVAT credit after 30 days from the date on which the 2000 Act
received the assent of the President. On the other hand, according to
the respondents, the amount of interest becomes payable only after
determination of the amount through an adjudication order or an order-in-
original after issuance of a show cause notice to the concerned assessee
and if the amount of the MODVAT credit availed is not repaid within 30
days from the date of the order.
11. In the case of Maharaja Shree Umaid Mills, the Assistant Commissioner,
Central Excise, Jodhpur, vide an order dated 27.05.2002, called upon the
said assessee to pay interest at the rate of 24% p.a. with effect from
30 days from the date on which the 2000 Act had received the assent of
the President.
12. Being aggrieved by the order passed by the Assistant Commissioner, an
appeal had been filed before the Commissioner (Appeals), Central Excise,
Jodhpur, which had been dismissed and therefore, the assessee had filed
an appeal before the Customs, Excise & Service Tax Appellate Tribunal,
New Delhi (hereinafter referred to as ‘the CESTAT’). The said appeal
had also been dismissed by the CESTAT and therefore, the assessee was
constrained to approach the High Court of Rajasthan by way of Central
Excise Appeal No. 3 of 2003, which has been allowed by the impugned order
and therefore, the Revenue has filed the present appeal.
13. Similarly, in all other cases, the assessees had succeeded before the
High Court in their respective cases and therefore, the Revenue has filed
the present appeals before this Court. So as to understand and
appreciate the issue, it would be pertinent to look at the provisions of
Section 112 of the 2000 Act and Rule 57 (I) of the Rules, which have been
reproduced hereinbelow:

 

“112. Validation of the denial of credit of duty paid on high speed
diesel oil. – (1) Notwithstanding anything contained in any rule of
the Central Excise Rules, 1944, no credit of any duty paid on high
speed diesel oil at any time during the period commencing on and
from the 16th day of March, 1995 and ending with the day, the
Finance Act, 2000 receives the assent of the President, shall be
deemed to be admissible.

 
(2) Any action taken or anything done or purported to have been
taken or done at any time during the said period under the Central
Excise Act or any rules made thereunder to deny the credit of any
duty in respect of high speed diesel oil, and also to disallow such
credit to be utilised for payment of any kind of duty on any
excisable goods shall be deemed to be, and to always have been, for
all purposes, as validly and effectively taken or done, as if the
provisions of sub-section (1) had been in force at all material
times and, accordingly, notwithstanding anything contained in any
judgment, decree or order of any court, tribunal or other authority,-

 

 

 
(a) no suit or other proceedings shall be maintained or continued in
any court, tribunal or other authority for allowing the credit of
the duty paid on high speed diesel oil and no enforcement shall be
made by any court, tribunal or other authority of any decree or
order allowing such credit of duty as if the provisions of sub-
section (1) had been in force at all material times;

 
(b) recovery shall be made of all the credit of duty, which have
been taken or utilised but which would not have been allowed to be
taken or utilised, if the provisions of sub-section (1) had been in
force at all material times, within a period of thirty days from the
date on which the Finance Act, 2000 receives the assent of the
President and in the event of non-payment of such credit of duty
within this period, in addition to the amount of credit of such duty
recoverable, interest at the rate of twenty four per cent. per annum
shall be payable, from the date immediately after the expiry of the
said period of thirty days till the date of payment.

 
Explanation. – For the removal of doubts, it is hereby declared that
no act or omission on the part of any person shall be punishable as
an offence which would not have been so punishable if this section
had not come into force.”

 

 

 

 

 
Rule 57 (I) Recovery of credit wrongly availed of or utilised in an
irregular manner,-

 
(1)(i) Where credit of duty paid on inputs has been taken on
account of an error, omission or mis-construction on the part of an
officer or a manufacturer or an assessee, the proper officer may,
within six months from the date of filing the return as required to
be submitted in terms of sub-rule (8) of rule 57G, and where no such
return as aforesaid is filed, within six months from the last date
on which such return is to be filed under the said rule, serve
notice on the manufacturer or the assessee who has taken such credit
requiring him to show cause why he should not be disallowed such
credit and where the credit has already been utilised, why the
amount equivalent to such credit should not be recovered from him.

 
(ii) where a manufacturer has taken the credit by reason of fraud,
wilful mis-statement, collusion, or suppression of facts, or
contravention of any of the provisions of the Acts or the rules made
thereunder with intent to evade payment of duty, the provisions of
clause (i) shall have effect as if for the words “six months”, the
words ‘five years’ were substituted.

 
iii) the proper officer, after considering the representation, if
any, made by the manufacturer or the assessee on whom notice
is served under clause (i), shall determine the amount of
such credit to be disallowed (not being in excess of the
amount specified in the show cause notice) and thereupon
such manufacturer or assessee shall pay the amount
equivalent to the credit disallowed, if the credit had been
utilised, or shall not utilised the credit thus disallowed.

 
Explanation : where the service of the notice is stayed by an order
of a court of law, the period of such stay shall be excluded from
computing the aforesaid period of six months or five years, as the
case may be.

 
2) If any inputs in respect of which credit has been taken are not
fully accounted for as having been disposed of in the manner
specified in this Section, the manufacturer shall upon a
written demand being made by the Assistant Commissioner of
Central Excise, pay the duty leviable on such inputs within
three months from the date of receipt of the notice of demand.
3) Where a manufacturer or an assessee fails to pay the amount
determined under sub rule (1) or sub rule (2) within three
months from the date of receipt of demand notice, he shall pay,
in addition to the amount so determined, interest at such rate,
as may be fixed, by the Central Board of Excise and Customs
under Section 11 AA of the Act, from the date immediately after
the expiry of the said period of three months till the date of
payment.
4) Where the credit of duty paid on inputs has been taken wrongly
by reason of fraud, wilful mis-statement, collusion or
suppression of facts, or contravention of any of the provisions
of the Act or the rules made thereunder with intent to evade
payment of duty, the person who is liable to pay the amount
equivalent to the credit disallowed as determined under clause
(iii) of sub rule (1) shall also be liable to pay a penalty
equal to the credit so disallowed.

 
Explanation I : where the credit disallowed is reduced by the
Commissioner of Central Excise (Appeals), the Appellate Tribunal or,
as the case may be, a court of law, the penalty shall be payable on
such reduced amount of credit disallowed.

 
Explanation II : where the credit disallowed is increased or further
increased by the Commissioner of Central Excise (Appeals), the
Appellate Tribunal or, as the case may be, a court of law, the
penalty shall be payable on such increase or further increased,
amount of credit disallowed.

 
5) Notwithstanding anything contained in clause (iii) of sub rule
(1) or sub rule (3), where the credit of duty paid on inputs
has been taken wrongly on account of fraud, wilful mis-
statement, collusion or suppression of facts, or contravention
of any of the provisions of the Act or the rules made
thereunder with intent to evade payment of duty, the person who
is liable to pay the amount equivalent to the credit disallowed
as determined under clause (iii) of sub rule (1) shall also be
liable to pay interest at such rates as may be fixed by the
Board under Section 11 AA of the Act from the first day of the
month succeeding the month in which the credit was wrongly
taken, till the date of payment of such amount.

 
Explanation I : for the removal of doubts, it is hereby declared
that the provisions of this sub rule shall not applied to cases
where the credit disallowed became payable before the 23rd day of
July, 1996.

 
Explanation II : where the credit disallowed is reduced by the
Commissioner of Central Excise (Appeal), the Appellate Tribunal or,
as the case may be, a court of law, the interest shall be payable on
such reduced amount of credit disallowed.

 
Explanation III: where the credit disallowed is increased by the
Commissioner of Central Excise (Appeal), the Appellate Tribunal or,
as the case may be, a court of law, the interest shall be payable on
such increased or further increased, amount of credit disallowed.”

 

14. The learned counsel appearing for the revenue had submitted that by
virtue of the provisions of Section 112 of the 2000 Act, one has to
ignore the provisions of Rule 57 (I) of the Rules, as Section 112 of the
2000 Act had been enacted as a one- time measure to see that all those
who had wrongly availed the MODVAT credit on the duty paid on the HSD oil
used as an input in their factories repay the amount wrongfully retained
by them immediately. The learned counsel had discussed various
provisions whereby the position with regard to the admissibility of the
MODVAT credit on duty paid on the HSD oil used as an input had been
changed from time to time in the past till the litigation which had been
finally decided by this court. As there is no dispute with regard to the
non-admissibility of the MODVAT credit on the HSD oil used as an input
for the period commencing from 16.03.1995 till the date the 2000 Act
received the President’s assent, we need not discuss the relevant rules
and notifications in pursuance of which the MODVAT credit in respect of
the duty paid on the HSD oil as an input was not admissible.
15. The learned counsel had submitted that the provisions of Section 112
(2)(b) of the 2000 Act clearly enables the Revenue not only to recover
the entire MODVAT credit which had been wrongly availed by the concerned
assessees within 30 days from the date on which the 2000 Act had received
assent of the President but in the event of non-payment of the amount
within the said period, it enables the Revenue to recover interest at the
rate of 24% per annum from the date immediately after expiry of the said
period of 30 days till the date of payment of the amount by the concerned
assessee.
16. It had been further submitted by the learned counsel for the Revenue
that the provisions of Section 112 of the 2000 Act are merely declaratory
in nature. In fact MODVAT credit on the use of the HSD oil as an input
was not permissible by virtue of Notifications issued in 1995. In spite
of the fact that the MODVAT credit was not available on the HSD oil,
several assessees were claiming credit on the HSD oil as an input and
therefore, by virtue of Section 112 of the 2000 Act it was declared that
no MODVAT credit would be available on the HSD oil, used as an input. He
had, therefore, submitted that in fact there was no retrospective
increase in the liability of the assessees by virtue of Section 112 of
the 2000 Act.
17. According to the learned counsel, the aforestated provisions, in an
unambiguous language, authorizes the Revenue to recover interest at the
rate of 24% p.a. without any reference to any show cause notice or any
other condition and therefore, as per his submission, the assessee was
bound to pay interest as demanded by the Assistant Commissioner, Central
Excise by the order dated 27.05.2002 and the High Court was in error in
setting aside the orders whereby the amount of interest was sought to be
recovered from the respondents.
18. The learned counsel had relied upon judgments which restrained the
manufacturers from claiming the MODVAT credit on use of the HSD Oil as an
input for the period commencing from 16.03.1995 till the date the 2000
Act received the President’s assent. Among other judgments, the learned
counsel appearing for the Revenue had mainly relied upon the judgment
delivered in the case of Sangam Spinners Limited v. Union of India &
Ors. [(2011) 11 SCC 408].
19. On the other hand, the learned counsel appearing for the respondents
had supported the reasons given by the High Court while quashing and
setting aside the orders passed by the CESTAT whereby imposition of
interest at the rate of 24% p.a. on the amount of the MODVAT credit
availed on the use of the HSD oil as an input, for the period referred
to hereinabove, was upheld.
20. The learned counsel had submitted that Section 112 of the 2000 Act
cannot be read in isolation, but it must be read with the provisions of
Rule 57 (I) of the Rules. According to them, in any case, before
demanding interest from any assessee, first of all the final liability,
i.e. the amount payable has to be ascertained and only upon ascertainment
of the amount payable, interest can be calculated and demanded on the
said amount.
21. It had also been submitted by the learned counsel appearing for the
respondents that by virtue of the retrospective effect, liability of the
respondents had been increased not only by not permitting to avail MODVAT
credit on use of the HSD oil as an input for the period referred to
hereinabove but also by imposition of interest @ 24% p.a. on the amount
of the MODVAT credit availed on the HSD oil used as an input with effect
from 30 days from the date on which the President had given assent to
Section 112 of the 2000 Act. The learned counsel had relied upon several
judgments including the judgments delivered in the cases of State of
Rajasthan & Ors. v. Ghasilal [(1965) 2 SCR 805] and Harshad Shantilal
Mehta v. Custodian and Ors. [(1998) 5 SCC 1] to substantiate their
submissions to the effect that till the amount of tax is determined, no
interest can be levied on the amount of tax.
22. Thus, the learned counsel appearing for the respondents had prayed
that the appeals should be dismissed for the sound reasons recorded by
the High Court in the impugned judgment.
23. Upon perusal of the impugned judgment and the judgments referred to by
the learned counsel appearing for both sides, we are of the view that the
impugned judgment deserves to be quashed and set aside for the reasons
recorded hereinafter.
24. Upon perusal of the impugned judgment as well as the provisions of
Section 112 of the 2000 Act, one might have an impression that the
Revenue has become harsh in imposing interest at the rate of 24% p.a. on
the amount of MODVAT credit availed on the HSD oil used as an input
without any adjudication of the amount payable or without even issuance
of a show cause notice. In fact if we look at the provisions of Section
112 of the 2000 Act along with other notifications which had been issued
earlier in 1995 and 1994, whereby availment of MODVAT credit on the HSD
oil used as fuel in generation of electricity had been ordered to be
discontinued, we would feel that the first impression that one would
gather upon perusal of Section 112 of the 2000 Act would not be correct.

 
25. It is necessary to look at the background and the circumstances in
which Section 112 of the 2000 Act had been enacted. By virtue of the
Notifications issued on 01.03.1994 and 16.03.1995 issued under Rule 57A
of the Rules, the Central Government had specifically declared that
MODVAT credit on the HSD oil used as an input would not be available as
the said item had been specifically excluded from the list of eligible
exempted inputs. In spite of the said fact, several assessees were
claiming MODVAT credit in respect of the HSD oil used as an input and
therefore, Section 112 of the 2000 Act had to be enacted. Thus, it is
clear that the said Section had been enacted so as to see that no one
claims MODVAT credit in respect of the HSD Oil used as an input and those
who had wrongfully availed MODVAT credit in respect of the HSD oil used
as an input and those who had claimed the credit wrongfully, return the
said amount within 30 days from the date the President gives assent to
the 2000 Act. This clearly denotes that by virtue of the provisions of
Section 112 of the 2000 Act, MODVAT credit availed on the HSD oil used as
an input had not been withdrawn for the first time but it was declared
that if anybody had availed MODVAT credit on the HSD oil used as an
input, will have to return it within 30 days and in case the amount
being not refunded within 30 days, the amount of the MODVAT credit
wrongfully availed by the concerned assessee had to be returned with
interest at the rate of 24% p.a.
26. The aforestated factual aspect would clarify that Section 112 of the
2000 Act is in fact not having any retrospective effect but it only
enables the Government to get back the wrongly availed MODVAT credit on
the HSD oil used as an input.
27. A somewhat similar issue had arisen before this Court in the case of
Sangam Spinners Limited (supra) and after considering earlier
Notifications issued by the Government, it had been held that Section 112
of the 2000 Act did not take away any right of any assessee with
retrospective effect. This court held in the said case that the HSD oil
had been specifically excluded from the list of eligible inputs with
effect from 16th March, 1995 and therefore, no assessee had any vested
right to avail benefit of MODVAT credit on the HSD oil used as an input
and therefore, if any benefit, which had been wrongly availed by any
manufacturer, the benefit wrongfully availed had to be returned.
28. It is also pertinent to note that the validity of Section 112 of the
2000 Act had not been challenged in the petitions filed by the
respondents and therefore, we need not go into the legality of the said
Section.

 
29. In the aforestated circumstances, in our opinion, there was no issue
with regard to any adjudication because the respondents had availed
MODVAT credit on the HSD oil used as an input though it was not
permissible. Once it is certain that the MODVAT credit had been wrongly
availed by the respondents, in our opinion, the Revenue cannot be blamed,
if the amount wrongly availed by way of MODVAT credit by the respondents
is recovered with interest thereon. It is also pertinent to note that the
Revenue had given 30 days’ time to return the said amount to the
respondents who had wrongly availed MODVAT credit on the HSD oil used as
an input. If anyone who had repaid the amount wrongly availed within 30
days from the date on which Section 112 of the 2000 Act got the
President’s assent, that assessee had not to pay any interest on the
amount of duty availed by him wrongly. But those who had availed the
MODVAT credit on the HSD oil used as an input and did not return the said
amount even within 30 days from the date on which the President had given
assent to the enactment of Section 112 of the 2000 Act, had to return the
amount wrongfully retained by them with interest at the rate of 24% p.a.
In our opinion, such a course, adopted by the Revenue for recovery of the
amount which was legitimately claimed by the Revenue, cannot be said to
be bad in law.

 
30. In the circumstances and for the reasons recorded hereinabove, we are
of the view that the High Court committed an error by not considering the
aforestated factors and therefore, we quash and set aside the impugned
judgment by allowing these appeals with no order as to costs. The stay
granted is vacated.

 

………………………………………..J.

 
(ANIL R. DAVE)

 

 

 

 

 

 

 

…………………………………………J.
(DIPAK MISRA)

 

New Delhi
December 17, 2013.

 

———————–
22

 

 

 

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