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2008 (11) TMI 270 - HC - Central ExciseWhether opting of the appellant under the Optional Compound Levy Scheme introduced under the Notification of 1st July, 2001 has got any relevance with regard to the accrued Modvat credit on the goods manufactured prior to 10-12-1998 under Notification No. 36/1998? Held that - The question as framed is answered against the Revenue, and in favour of the assessee, in the manner, that it is held, that even after opting under the Optional Compound Levy Scheme, introduced vide notification dt. 1-7-2001, the petitioner is entitled to avail/utilise the Modvat credit, on the goods, manufactured prior to 10-12-1998, under the notification no. 36/1998, which right was recognised by this Court vide judgment dt. 22-8-2001, on the analogy flowing from sub-para (7) (a) of notification no. 32/2001.
Issues Involved:
1. Relevance of opting under the Optional Compound Levy Scheme with regard to accrued Modvat credit on goods manufactured prior to 10-12-1998. 2. Utilization of Modvat credit for payment of Central Excise duty under the compounded levy scheme. 3. Interpretation of Notification No. 32/2001 and its impact on previously earned Modvat credit. Detailed Analysis: 1. Relevance of Opting under the Optional Compound Levy Scheme with regard to Accrued Modvat Credit on Goods Manufactured Prior to 10-12-1998: The core issue revolves around whether the appellant's decision to opt under the Optional Compound Levy Scheme introduced by the Notification dated 1st July 2001 affects the Modvat credit accrued on goods manufactured before 10-12-1998. The appellant had previously earned Modvat credit on goods manufactured up to 16-12-1998, as recognized by a High Court judgment dated 22-8-2001. The appellant argued that this right to Modvat credit, once recognized, should not be nullified by subsequent notifications or scheme options. The Court held that the appellant's right to avail Modvat credit on goods manufactured up to 16-12-1998, as recognized by the earlier judgment, remains unaffected by the subsequent notification and scheme options. 2. Utilization of Modvat Credit for Payment of Central Excise Duty under the Compounded Levy Scheme: The appellant was initially allowed to avail Modvat credit on goods manufactured up to 16-12-1998. However, the Joint Commissioner and the Commissioner held that this credit could not be utilized for payment of duty under the compounded levy scheme, as it would result in enjoying benefits of both the compound levy and ad valorem schemes, which is not permissible. The Tribunal upheld this view, citing that an assessee cannot combine procedures under different rules. The Court, however, found that the right to avail Modvat credit, as recognized by the earlier judgment, should not be negated by the compounded levy scheme, especially when the goods in question were manufactured prior to the relevant dates specified in the notifications. 3. Interpretation of Notification No. 32/2001 and its Impact on Previously Earned Modvat Credit: Notification No. 32/2001, particularly sub-paras 5, 6, and 7, was central to the dispute. Sub-para (5) states that opting for the provisions of this notification renders the assessee ineligible to avail any credit of duty paid on inputs or capital goods under the CENVAT Credit Rules, 2001. Sub-para (6) restricts the notification's applicability to goods manufactured on or after 1-5-2001, while sub-para (7) clarifies that it does not apply to goods manufactured prior to 1-5-2001 and cleared thereafter. The Court interpreted these provisions to mean that the notification does not intend to forfeit the right to Modvat credit on goods manufactured before 1-5-2001. Thus, the appellant's right to Modvat credit on goods manufactured up to 16-12-1998, recognized by the earlier judgment, remains intact despite opting for the new scheme. Conclusion: The High Court concluded that the appellant's right to avail and utilize Modvat credit on goods manufactured prior to 10-12-1998, as recognized by the judgment dated 22-8-2001, is not affected by opting under the Optional Compound Levy Scheme introduced by Notification dated 1-7-2001. The impugned orders were set aside, and the action taken against the appellant was quashed. The appeal was allowed in favor of the assessee.
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