2000 (6) TMI 184 - AT - Central Excise

Issues Involved:
1. Scope of Rule 57H relating to 'transitional provisions' for modvat credit.
2. Eligibility of inputs not in stock for modvat credit post-amendment of Rule 57H on 5-5-1989.
3. Conflicting Tribunal decisions on the interpretation of Rule 57H.

Issue-Wise Detailed Analysis:

1. Scope of Rule 57H relating to 'transitional provisions' for modvat credit:
The appeals concern the interpretation of Rule 57H, which deals with 'transitional provisions' for modvat credit. Rule 57A grants credit for duty paid on excisable goods used as inputs, and Rule 57G outlines the procedure for manufacturers to claim this credit. Rule 57H provides exceptions to Rule 57G, allowing the Assistant Commissioner of Central Excise to permit credit for duty paid on inputs received by a manufacturer before obtaining the dated acknowledgment of the declaration under Rule 57G, subject to certain conditions. The dispute centers on claims for modvat credit on stocks of inputs held during the transition from exemption to duty payment on final products.

2. Eligibility of inputs not in stock for modvat credit post-amendment of Rule 57H on 5-5-1989:
The amendment to Rule 57H on 5-5-1989 deleted sub-clause (ii) of sub-rule (1), which previously allowed credit for inputs used in the manufacture of final products cleared from the factory on or after 1-3-1987. Post-amendment, the Revenue argued that credit was only permissible for inputs in stock as such, not for inputs that had become part of the final product. This was contested in the case of M/s Zoloto Industries, where the claim for credit was based on inputs held before the amendment. The Commissioner (Appeals) ruled in favor of the assessee, stating that the amendment could not have retrospective effect, a position supported by the High Court's decision in Universal Drinks Private Ltd. v. Union of India.

3. Conflicting Tribunal decisions on the interpretation of Rule 57H:
The Tribunal had differing views on the interpretation of Rule 57H. In Konark Cement & Asbestos Ltd. v. CCE, Bhubaneshwar, the Tribunal held that post-amendment, transitional credit was restricted to inputs lying in stock. This view was followed in CCE, Calcutta-II v. Okay Steel Private Ltd. However, in Suresafe Glass Works (P) Ltd. v. CCE, Calcutta-I, the Tribunal took a different stance, stating that the surviving clause (i) of Rule 57H(1) still covered 'inputs in process'. The Single Member in Suresafe Glass Works argued that the earlier decisions did not consider the second part of clause (i) regarding inputs received in the factory after filing the declaration under Rule 57G. This interpretation was deemed necessary to address the factual position of inputs received post-declaration.

Separate Judgments Delivered:
In the case of M/s Zoloto Industries, the Commissioner (Appeals) allowed the claim for modvat credit based on the pre-amendment rule, which permitted credit for inputs in stock and inputs in process. The Tribunal upheld this decision, rejecting the Revenue's appeal.

For M/s Bhanu Chemicals and M/s Crown Industries, the Tribunal found that their claims for modvat credit were rejected solely on the grounds that the inputs were not in stock as such. The Tribunal remanded these cases to the jurisdictional Assistant Commissioner for reconsideration, instructing that the eligibility for credit should be assessed based on whether the inputs were received after filing the declaration under Rule 57G.

Conclusion:
The Tribunal concluded that Rule 57H(1) from 5-5-1989 to 25-7-1991 permitted modvat credit for both inputs lying in stock and inputs in process, provided the inputs were received after filing the declaration under Rule 57G. The appeals of M/s Crown Industries and M/s Bhanu Chemicals were remanded for reconsideration, while the appeal of the Revenue in the case of M/s Zoloto Industries was rejected.

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