1994 (3) TMI 230 - AT - Central Excise

Summary

Issues Involved:
Whether higher notional credit, initially not taken at the time of entry of inputs but subsequently claimed, can be allowed or not.

Detailed Analysis:

Issue 1: Higher Notional Credit Claim
The appeal involved the question of whether higher notional credit, which was not initially taken at the time of entry of inputs but subsequently claimed, could be allowed. The respondents had received inputs paying duty at a concessional rate under a specific notification. They were entitled to claim higher notional credit under Rule 57B of the Central Excise Rules. However, due to a mistake, they initially took only the actual duty paid as credit instead of the higher notional credit. Upon realizing the error, they requested to rectify it within six months. The authorities disallowed the request, leading to the appeal before the Tribunal. The Tribunal held that if the credit was not initially taken due to a mistake and rectified within six months, the claim for higher notional credit could be allowed.

Issue 2: Application of Section 11B
The Tribunal considered the application of Section 11B in the context of claiming short credit not initially taken. Despite the absence of specific provisions governing the limitation period for such claims in the Modvat rules, the Tribunal, following the Gujarat High Court's decision in a similar case, held that the provisions of Section 11B could be considered. The Tribunal acknowledged the need for an authoritative pronouncement from the High Court on this legal point and decided to make a reference for clarification.

Judicial Precedent
The Tribunal referred to a judgment of the Gujarat High Court in a related case, emphasizing the importance of timely claims for differential credit. The High Court's decision highlighted the significance of proving eligibility and adhering to the relevant conditions within a reasonable period. The Tribunal found the Gujarat High Court's stance in alignment with its own view, emphasizing that what is not explicitly prohibited in the rules can be permitted if eligibility is established and the claim is made within a reasonable timeframe.

Conclusion
The Tribunal decided to refer the issue to the Bombay High Court for clarification, considering the legal complexities surrounding the application of Section 11B to claims for higher notional credit not initially taken. The Registry was directed to forward the relevant orders for the High Court's consideration, along with the reference application made in a similar case. This step was taken to seek authoritative guidance on the interpretation of the relevant provisions and ensure consistency in decision-making.