Central Excise Appeal No. 213 of 2010 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Central Excise Appeal No. 213 of 2010 Date of decision: 16.2.2011 Commissioner of Central Excise, Chandigarh-II ...Appellant Versus M/s GEE EMM Polyvin Ltd. ...Respondent CORAM: HON'BLE MR.JUSTICE ADARSH KUMAR GOEL HON'BLE MR.JUSTICE AJAY KUMAR MITTAL Present: Mr. H.P.S.Ghuman, Senior Standing Counsel for the appellant. **** ADARSH KUMAR GOEL, J. 1. This appeal has been preferred by the revenue under Section 35G of the Central Excise Act, 1944 against order dated 28.1.2010 passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi claiming following substantial question of law:- “i) Whether the Hon'ble Tribunal is right in rejecting the appeal of the Department without going into merits of the case and upholding the sanction of refund of differential duty, debited in view of Rule 3(4) of Cenvat Credit Rules, 2002 on account of short reversal of credit on clearance of capital goods 'as such' on the ground that Tribunal's decision dated 4.7.08 on main issue is in favour Central Excise Appeal No. 213 of 2010 -2- **** of party, where as the main issue involved in decision dated 4.7.08 is yet to attain finality as the department's appeal before Hon'ble High Court of Punjab & Haryana is pending decision?” 2. Vide order-in-original dated 12.5.2006 proceedings alleging deficient payment of excise duty on account of wrongful availment of cenvat credit were dropped, which order has been upheld by the Commissioner (Appeals) and has been further upheld by the Tribunal. The Tribunal, inter-alia, observed:- “The department deserves to be complimented for their perseverance as the Tribunal's decision dated 4.7.2008 in the previous set of proceedings on the main issue is in favour of the party, the question of allowing this appeal of the department does not arise.” In spite of the above observations, the department has chosen to file the appeal in this Court claiming that there is a substantial question of law which only shows total carelessness and non-application of mind. Apart from the fact that the Original Authority, the Appellate Authority and the Tribunal decided against the department, the amount involved is only Rs.39,117/-. Inspite of the judgments of Hon'ble Supreme Court as well as observations made by this Court, the department is turning a deaf ear and is wasting public money on avoidable litigation. 3. Accordingly, we dismiss this appeal with costs quantified at Rs.10,000/- to be recovered from the person taking decision to file Central Excise Appeal No. 213 of 2010 -3- **** this appeal within three months from today and to be deposited with the High Court Legal Services Committee. Affidavit of compliance may be filed by the Commissioner of Central Excise, Chandigarh-II. A copy of this order be also sent to Secretary, Finance, Government of India, New Delhi. (Adarsh Kumar Goel) Judge February 16, 2010 (Ajay Kumar Mittal) Pka Judge