THE HONOURABLE SRI JUSTICE P.SAM KOSHY AND THE HONOURABLE SRI JUSTICE NARSING RAO NANDIKONDA Central Excise Appeal No.48 of 2006 JUDGMENT: (per Hon’ble Sri Justice P.SAM KOSHY The instant Appeal has been filed by the appellant herein under Section 35G of the Central Excise Act, 1944 aggrieved by the Final Order No.1484 dated 26.08.2005 in Appeal No.E/236/2005, passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, at Bangalore, (for short, ‘the impugned order’)

2. Heard Mr.Dominic Fernandes, learned Standing Counsel for the Central Board of Indirect Taxes, assisted by Mr. Aditya Vyas, learned counsel for the appellant; and Mr.M. Sridhar, learned counsel for the sole respondent.

3. The question of law involved in the instant appeal is : whether the Tribunal was justified in rejecting the appeal filed by the appellant – Department, whereby the respondent-Assessee was allowed to avail the accumulated money credit to the tune of Rs.17,91,63,720/- which could not be adjusted because of abolition of scheme vide Notification No.37/03 CE, dated 30.04.2003, and confirming the order dated 25.11.2004 in O.I.A.No.84 of 2004 passed by the Commissioner of customs & Central Excise (Appeals), Hyderabad.

4. The brief facts of the case are that respondent-Assessee herein is manufacturer of vegetable oil. The manufacturers of vegetable oil are entitled for availing money credit in terms of notification issued by the Government, viz., Notification No.45/89CE, dated 11.10.1989. The said scheme was introduced to encourage manufactures of Vanaspathi for use of minor oils. In the process, the respondent-Assessee also availed money credit on minor oils used by them for the manufacture of Vanaspathi at their establishment. However, the said availment of money credit by the manufacturers of Vanaspathi stood abolished vide Notification No.16/96CE dated 23.07.1996. At that point of time, the respondent-Assessee had an accumulated amount of Rs.17,91,63,720/-. Thereafter, the said scheme of availing money credit was reintroduced by the Government vide its Notification No.37/2003 CE, dated 30.04.2003. Thereafter, the respondent- Assessee wanted to claim the accumulated money credit of Rs.17,91,63,720/- to be adjusted against duty payable on clearance of their final products on monthly basis, which was initially turned down by the Office of the Assistant Commissioner of Central Excise Hyderabad – E Division, Nampally Station Road, Hyderabad vide Order in Original in C.No.V/15/30/3/2003-Tech, dated 01.07.2004.

5. However, on an appeal preferred by the respondent-Assessee before the Commissioner of Customs & Central Excise (Appeals), Hyderabad, the Commissioner vide Order-in-Appeal No.84/2004 (H-II) CE, dated 25.11.2004, set aside the Order in Original in C.No.V/15/30/3/2003-Tech, dated 01.07.2004. Aggrieved, the appellant herein preferred appeal before the Tribunal at Bangalore. However, the Tribunal vide order dated 26.08.2005 in Appeal No.E/236/05 dismissed the appeal and confirmed the order passed by the Commissioner vide Order-in-Appeal No.84/2004 (H-II) CE, dated

25.11.2004.

6. Aggrieved, the instant appeal has been filed by the appellant.

7. Learned counsel for the appellant vehemently contended that the impugned order is bad in law for the reason that the judgments of various High Courts which have been relied upon by the learned Tribunal as also by the Commissioner (Appeals) are all which were decided under an entirely different contextual background; and therefore, since the said judgments are distinguishable on facts, the same could not have been taken into consideration by the Tribunal as also by the Commissioner (Appeals). According to him, it was a case where once when the scheme was abolished vide Notification No.16/96CE dated 23.07.1996, whatever amount that stood accumulated in the manufacturer’s credit would automatically get lapsed and the said amount would no longer be treated to be in existence. He therefore contende