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2020 ] SHREE FLAVOURS LLP v. COMMISSIONER OF CENTRAL EXCISE, DELHI 87

sions of sections 11A and 11AB of the Act, shall apply mutatis mutandis for
effecting such recoveries.
Provided further that all such bulk packs of chewing tobacco on which
credit has been wrongly taken or utilised wrongly shall be liable to confis-
cation and the manufacturer shall be liable to a penalty not exceeding the
duty on such bulk packs of chewing tobacco :
Provided also that in a case, where the Cenvat credit has been taken or uti-
lised wrongly on account of fraud, wilful misstatement, collusion or sup-
pression of facts, or contravention of any of the provisions of the Act or the
rules made thereunder with intention to evade payment of duty, then, the
manufacturer shall also be liable to pay penalty in terms of the provisions
of Section 11AC of the Act.
(7) Except as provided in this rule, no other provisions of Cenvat Credit
Rules, 2004 shall apply in relation to the notified goods.”
So, the provisions of Cenvat Credit Rules are applicable in the case of this Rule
also.
9. We have seen the decision in the case of Delphi-TVS Diesel Systems
Ltd. v. CESTAT, Chennai - 2015 (324) E.L.T. 270 (Mad.), wherein it is held that
rules being subordinate legislation, cannot prescribe anything different than pre-
scribed in the Act, rules can occupy a field that is not occupied by Statute. The
rule cannot occupy a field i.e. already occupied of the statute. In view of the
above judgment, the Hon’ble High Court its very much intention that the ground
taken by the first appellate authority to reject the refund scheme is not sustaina-
ble in the eyes of law. By application of aforesaid ratio in the present case, we
find that by application of grant of refund inadmissible to the appellant needs to
be refunded back to the appellant. We find that there are many decisions of the
Tribunal as well as the Superior Courts, that the Cenvat credit lying with the ap-
pellant is also a duty and cannot be treated separately as compared to the Reve-
nue in PLA account. We also find in the following case which has been held ac-
cordingly :
(1) CCE v. Bhavin Textiles - 2008 (221) E.L.T. 44 (Guj.);
(2) CCE, Trichy v. Maha Sree Aruna Chemicals - 2008 (230) E.L.T. 571
(Tri.-Chennai);
(3) Kundalia Industries v. CCE, Delhi-I - 2007 (8) S.T.R. 437 (Tri.-Del.);
(4) CC & CCE, Bhopal v. Bombay Burmh Trading Corpn. Ltd. - 2005 (190)
E.L.T. 40 (Tri.-Del.);
(5) CCE, Rajkot v. Deepak Vegetable Oil Inds. - 2001 (127) E.L.T. 817 (Tri.-
Mum.);
(6) Gauri Plasticulture (P) Ltd. v. CCE, Indore - 2006 (202) E.L.T. 199 (Tri.-
LB);
(7) Slovak India Trading Co. Pvt. Ltd. v. CCE, Bangalore - 2006 (205) E.L.T.
956 (Tri.-Bang.);
(8) Shree Praksh Textiles (Guj.) Ltd. v. CCE, Ahmedabad - 2004 (169) E.L.T.
162 (Tri.-Mumbai);
(9) Tablets India Ltd. v. CCE, Pondicherry - 2006 (197) E.L.T. 449 (Tri.-
Chennai);

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