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2. By reply dated 17.2.1994 the appellants contested the claim of the department in the show cause notice on the ground that in terms of the Madras High Court judgement in the writ appeal, they are entitled to adjustment of any money credit accrued to them while clearing the final product under Notification 45/89. They contested the departmental claim of undertaking given by them at the time of utilising the money credit in terms of the judgement rendered in the writ petition to enable the department to go in for Writ appeal, cannot be considered as provisional assessment. They stated that the High Court had categorically held that they were entitled to avail the money credit accrued to them and they were entitled to adjust the same @ Rs. 900 per MT apart from claiming the benefit of Rs. 1000/- per MT as per Notification 45/89. They contested the Revenue’s plea that money credit earned by them under both these Notifications issued under the rules cannot be regarded as separate and independent, as incorrect. They stated that both the Notifications 25/87 and 45/89 are independent from each other and were for different purposes. They stated that the money credit which were there in their account can be utilised for clearances made for final product under Notification 45/89 and in this regard relied upon the judgement of the Karnataka High Court in the case of Modern Mills Ltd. wherein on the same point the High Court had clearly clarified that party can utilise the benefit under Notification 45/89 in addition to the accumulated credit accrued to them under Notification 27/87 already earned upto the date when it was rescinded. They stated that the judgement rendered by the Madras High Court in Writ appeal is binding on the department and the question of not giving effect to the judgement by issue of show cause notice does not arise. The pleas were rejected by the AC and the AC held that the undertaking taken by the department at the time of filing the Writ appeal is required to be construed as provisional assessment and therefore held that the appellants cannot take dual benefit of both the Notifications. He held that he was finalising the assessment already resorted to in respect of clearances of vanaspati effected under AR-1 17/92-93 dated 24.4.1992 to 174/92-93 dated 31.12.1992 by regularising the utilisation of credit to the extent of Rs. 7,33,695 out of Rs. 16,86,733.13 rightfully earned by them. Further, under Notification dated 27/87 which was outstanding as on 25.8.1989 i.e. the date of rescinding of Notification 27/87 dated 1.3.1987 and which credit could not be utilised during the period from 28(sic).8.1989 to 31.10.1989 in respect of Rs. 7,33,695 MT of vanaspati cleared during the said period he demanded payment of excess utilisation of the credit to the tune of Rs. 9,53,041.13 under Rule 9 of the CE Rules, 1944.
3. The Collector (Appeals) also rejected the appellants’ plea that there was no provisional assessment in terms of Rule 9B.
4. Arguing for the appellants, the learned Counsel Shri Mayilsamy took us through the judgement rendered by the Madras High Court in the Writ petition and also in the writ appeal. He contends that the detailed judgement of the learned Single Judge in the writ petition clearly shows that the appellants are entitled to utilise the money credit earned by them for paying duty with regard to the clearances made under Notification 45/89. He pointed out to the judgement of the Madras High Court and also the various other judgements which had also held likewise that the money credit earned under Notification 27/87 will not lapse on the Govt. rescinding the earlier Notification and the said money credit could be utilised in good faith for making payment towards duty in the subsequent Notification. He referred to paras 15 & 16 of the said judgement wherein the High Court conclusively agreed with the Division Bench judgement.
