2001 (1) TMI 145 - AT - Central Excise

Summary

Issues:
Whether Modvat Credit of the duty paid on Furnace Oil is to be restricted to 10% adv. in view of Notification No. 5/94-C.E. (N.T.), dated 1-3-1994, as amended.

Analysis:
The appeal filed by M/s. Jindal Polymers raised the issue of whether the Modvat Credit of the duty paid on Furnace Oil should be limited to 10% adv. based on Notification No. 5/94-C.E. (N.T.), dated 1-3-1994, as amended. The Appellants contended that they manufacture polysterchip and took Modvat Credit of the entire duty paid on the furnace oil used as fuel from August 1997 to January 1998. The Additional Commissioner disallowed the Modvat Credit and imposed a penalty, citing the restriction of 10% adv. under the amended Explanation to Rule 57B. The Commissioner (Appeals) upheld this decision, stating that the amendment had retrospective effect. The Appellants argued that since they had taken Modvat Credit under Rule 57B, the restriction under Notification No. 5/94 (N.T.) issued under Rule 57A should not apply. They referenced previous tribunal decisions to support their position.

In response, the learned D.R. argued that the Explanation inserted in Rule 57B by Notification No. 5/98 (NT) was clarificatory and thus had retrospective effect. The Larger Bench decision in the L & T case was cited to differentiate between clarificatory and substantive amendments. The Appellants referenced the decision in the case of C.I.T. v. Patel Brothers & Co. Ltd. to support their stance that certain explanations may not be clarificatory despite being issued for the removal of doubts.

The Division Bench of the Tribunal had previously addressed the issue in the case of Jindal Polymers v. CCE, Meerut, where it was held that the Modvat Credit of the specified duty paid on Furnace Oil should be restricted to 10%. This decision was based on a harmonious construction of Rules 57A and 57B. The Tribunal followed a similar approach in the case of M/s. Jindal Polyster v. CCE, Meerut. Consequently, the current judgment upheld the restriction of Modvat Credit to 10% adv. for the specified duty paid on Furnace Oil. However, as the issue primarily involved the interpretation of the rules, no penalty was imposed, and the appeal was partly allowed.