Commissioner of Central Excise, Ludhiana v. M/s Malwa Cotton Spinning Mills Ltd

15.7.2009 Commissioner of Central Excise, Ludhiana M/s Malwa Cotton Spinning Mills Ltd Versus ...Appellant ....Respondent

CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. Sanjeev Kaushik, Senior Standing Counsel, Government of India (Indirect Taxes), for the appellant.

Whether Reporters of local papers may be allowed to see the judgment? To be referred to the Reporter or not? Whether the judgment should be reported in the Digest? M.M. KUMAR,J This appeal filed under Section 35(G) of the Central Excise Act, 1944 (for brevity “the Act”) is directed against order dated 3.6.2008 (Annexure A.3) passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi (for brevity “the Tribunal”) holding that assessee was entitled to avail the refund of the credit and, therefore, the provisions of 16 of the Cenvat Credit Rules, 2004 read with Section 11-A of the Act would not be attracted. It has come on record that the assessee, on 27.11.2004, has credited its account by availing the refund. On the objection raised by audit, respondent debited its amount on 26.9.2005. However, the Assistant Central Excise Appeal No.31 of 2009 #2# Commissioner allowed the refund of Rs.2,94,085/- in their RG-23A Part-II Account. On the aforesaid factual basis, it cannot be concluded that there was any fraud, mis-statement, collusion, suppression of facts or violation of any provisions. The refund was, in fact, permissible and the only procedural lapse was committed by the dealer-respondent. Even otherwise, the view taken by the Tribunal is based on finding of fact and we can not, in an appeal under Section 35(G) of the Act, re-appreciate the evidence and conclude that the finding of fact is incorrect so the appeal can only be maintained on the substantial question of law. There is no merit in the appeal. Dismissed. ( M.M. KUMAR ) JUDGE July 15, 2009 ( JASWANT SINGH ) JUDGE