2013 (9) TMI 1126 - HC - Central Excise

Reversal of MODVAT credit - Special Scheme - Court directed that the Modvat Credit so reversed would be considered as provisional and upon final deduction, the correct amount shall be computed. It was further directed that in case the aforesaid provisional reversal is found to be short, then the assessee/tax payer would be liable to make it good along with interest @20% per annum. Held that - The Chief Commissioner/Commissioner will appoint a Cost Accountant to determine the correct amount of Modvat Credit to be reversed as per the Special Scheme dated 04.01.1997 - The adjudicating authority/Commissioner will then consider the report and thereafter determine and decide the correct amount of Modvat Credit required to be reversed after giving adequate opportunity to the petitioners - as the rate of interest has already been fixed by the High Court order, the said rate of interest will not be interfered with - Petition disposed off.

Summary

Issues:
- Reversal of Modvat Credit under Special Scheme
- Appointment of Cost Accountant for determining correct amount
- Submission of figures and calculations by petitioners
- Opportunity for petitioners to explain accounts to Cost Accountant
- Submission of report by Cost Accountant to Excise Department
- Determination of correct amount of Modvat Credit by Commissioner
- Liability for interest in case of short reversal
- Benefit availability in case of excess reversal
- Challenge to adjudication order on merits but not on rate of interest

Analysis:

The judgment pertains to three connected writ petitions concerning the reversal of Modvat Credit under a Special Scheme announced on 04.01.1997. The petitioners had already reversed a certain amount of Modvat Credit as per the scheme, but the Court directed that this reversal would be considered provisional. It was further directed that if the provisional reversal was found to be short, the assessee would be liable to make up the difference along with interest at 20% per annum.

In a related matter, an application was filed for placing an additional affidavit on record due to subsequent developments. The respondents expressed readiness to appoint a Cost Accountant to determine the correct amount of Modvat Credit to be reversed. The Court directed the Chief Commissioner/Commissioner to appoint a Cost Accountant for this purpose. The petitioners were instructed to submit figures and calculations to assist the Cost Accountant in carrying out the exercise.

The Cost Accountant was required to provide an opportunity for the petitioners or their representatives to explain the accounts and the manner in which the Modvat Credit was reversed. Subsequently, the Cost Accountant would submit a report to the Excise Department, with a copy provided to the petitioners. The adjudicating authority/Commissioner would then consider the report and determine the correct amount of Modvat Credit to be reversed, giving the petitioners adequate opportunity to present their case.

In case of any excess or short reversal, appropriate directions would be passed by the adjudicating authority. If there was a short reversal, the petitioners would be liable to pay interest at the specified rate. Conversely, in case of excess reversal, the Modvat benefit would be made available to the petitioners. The judgment clarified that any challenge to the adjudication order could be made on merits but not on the rate of interest, as it had already been fixed by the High Court order.

Upon compliance with the payment terms outlined in the judgment and the adjudication order, the Special Scheme would be considered satisfied, and the writ petitions were disposed of without costs.