2011 (4) TMI 1089 - HC - Central Excise

Whether the Tribunal is correct in allowing modvat credit taken under the head of Additional Excise Duty (Textile and Textile Article) i.e. AED (T&TA) towards discharging Basic Excise Duty on the clearance of manufactured excisable goods - Held that - by insertion of the proviso, It is no more the requirement of law that credit taken for additional duty paid should be utilized only for clearing the goods if additional duty is to be paid in respect of the said goods also. As is clear from the proviso not only such a duty could be used towards payment of basic excise duty even if the duty availed in respect of an input is not used in the manufacture of final product, the benefit is available to the manufacturer, the only condition being that inputs should have been received and used in the factory for production, decision in favour of the assessee and against the revenue

Summary

Issues:
Interpretation of rules regarding utilization of modvat credit for payment of basic excise duty on final products.

Analysis:
The case involved a dispute regarding the utilization of modvat credit for discharging basic excise duty on manufactured excisable goods. The Tribunal had to consider whether the credit of additional duty of central excise could be used towards payment of basic excise duty on final products as per the relevant rules. The assessee had availed the credit, but the authorities disallowed it, leading to a demand for excise duty, interest, and penalty.

The revenue contended that as per Notification No. 5/1994, the credit of specified duty allowed in respect of inputs could only be utilized towards payment of duty of excise leviable for the Additional Duties of Excise on the final products or inputs cleared under Rule 57F. However, Rule 57F(12) was later amended to include a proviso allowing the utilization of specified duty towards payment of duty on any other final product, irrespective of whether the inputs were used in the manufacture of that product, provided they were received and used in the factory after March 1997.

The High Court observed that the insertion of the proviso in Rule 57F(12) had the effect of overriding the requirement that the credit taken for additional duty paid should only be used for clearing goods if additional duty needed to be paid on those goods. The Court held that the proviso allowed the credit to be used towards payment of basic excise duty even if the duty availed for an input was not used in the manufacture of the final product, as long as the inputs were received and used in the factory for production. Consequently, the Court upheld the Tribunal's decision, ruling in favor of the assessee and against the revenue.

As a result of the judgment, the reference was answered in favor of the assessee, and the appeal by the revenue was dismissed. The respondent was permitted to file a memo of appearance within four weeks, concluding the legal proceedings in the case.