1997 (7) TMI 465 - AT - Central Excise

Summary

Issues:
1. Grant of Modvat credit against confirmed duty demand.
2. Interpretation of provisions under Section 35-E(2) and Section 11A of the Central Excise Act.

Issue 1: Grant of Modvat credit against confirmed duty demand:
The appeal arose from an order passed by the Collector (Appeals) confirming a duty demand, confiscating seized goods, and imposing a penalty on the assessee. The assessee requested Modvat credit for duty paid on certain gate passes. The revenue challenged this grant of credit, arguing that Modvat credit on inputs is only admissible if final products are cleared on payment of duty. The revenue contended that the assessee had not complied with the Modvat scheme requirements and that no Modvat credit should be extended. The Collector (Appeals) did not consider all the grounds raised by the revenue but held that the department needed to issue a show cause notice under Section 11A within six months for recovery, which had not been done. The revenue contended that the grant of Modvat credit was not a refund application, and the provisions under Section 35-E(2) of the Act applied. The Tribunal noted that the revenue's application under Section 35-E(2) was sustainable, set aside the Collector (Appeals) order, and remanded the matter for further determination by the Commissioner (Appeals) based on the points raised in the review order.

Issue 2: Interpretation of provisions under Section 35-E(2) and Section 11A of the Central Excise Act:
The Tribunal analyzed the nature of the assessee's claim for Modvat credit against a confirmed duty demand. It noted that the assessee had not filed a refund application, and the grant of Modvat credit was not in the context of a refund or recovery of erroneous refund. The revenue argued that the Modvat claim was unsustainable due to procedural irregularities. The Tribunal held that the revenue's application under Section 35-E(2) was valid, as it pertained to the execution of the order in Original and not a refund process. Citing a precedent, the Tribunal emphasized that the powers under Section 35-E(2) and Section 35-E(3) were distinct from Section 11A and operated in different spheres. Consequently, the Tribunal set aside the Collector (Appeals) order and remanded the matter to the Commissioner (Appeals) for a detailed determination based on the review order's points and the cross objection filed by the assessee.

In conclusion, the Tribunal's decision focused on the procedural aspects of granting Modvat credit against a confirmed duty demand and the interpretation of relevant provisions under the Central Excise Act, ultimately remanding the matter for further consideration by the Commissioner (Appeals).