1990 (9) TMI 205 - AT - Central Excise

Summary

Issues Involved:

1. Whether the appellants are required to reverse the Modvat credit and pay the amount in cash for the duty on inputs lying in stock as on 1-3-1988 and on the stock of final products containing such inputs.
2. Whether the demand for reversal of credit and penalty is time-barred.

Detailed Analysis:

Issue 1: Reversal of Modvat Credit

The appellants, manufacturers of toys, availed Modvat credit on inputs used in manufacturing. Following the exemption of toys from duty under Notification No. 64/88, effective from 1-3-1988, the Department issued a notice for reversing the Modvat credit on inputs lying in stock as of that date. The Department's stance was that under Rule 57C of the Central Excise Rules, Modvat credit cannot be availed for inputs used in the manufacture of exempted final products. Consequently, inputs received before 29-2-1988, with unutilized credit as of 1-3-1988, required reversal.

The appellants argued that Modvat credit accrues instantaneously upon receipt of inputs and can be utilized immediately. They contended that there is no one-to-one co-relationship between inputs and final products, and at the time of credit utilization, the final products were dutiable. The appellants cited the decision in Collector of Central Excise, Bangalore v. Wipro Information Technology, which held that in the absence of a specific provision for credit reversal in such contingencies, the Department has no authority to demand repayment.

The Department countered that under Rule 57C, Modvat credit on inputs used in exempted final products must be reversed. They argued that inputs lying in stock on 1-3-1988, and used in the manufacture of exempted final products, necessitated credit reversal or cash payment.

The Tribunal examined the provisions of Rule 57-I, which allows recovery of Modvat credit if inputs are not fully accounted for as disposed of in the prescribed manner. The Tribunal noted the similarity between Rule 56A and the Modvat rules, as highlighted in the Wipro Information Technology case, where the Tribunal ruled that in the absence of specific provisions for credit recovery in such contingencies, the Department cannot demand repayment.

Issue 2: Time-Bar and Penalty

The appellants argued that the demand was beyond the six-month period and that the delay in furnishing information was not deliberate. The Department invoked the extended period under Section 11A, citing delayed information as suppression of facts with intent to evade duty.

The Tribunal found that the Department could have obtained the necessary information from RG-23A and RG-1 registers. The delay in issuing the show cause notice after receiving the information further weakened the Department's case. The Tribunal concluded that the demand was time-barred and the penalty unjustified.

Conclusion:

The Tribunal allowed the appeal on both grounds. It held that the Department's demand for credit reversal was not sustainable due to the absence of specific provisions in the rules for such contingencies, as established in the Wipro Information Technology case. Additionally, the demand was time-barred, and the penalty imposed was unjustified.