9911796707
TMI Blog1990 (4) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... started clearing the scrap generated by breaking the ship without payment of Central Excise duty and without taking out a licence in regard to the production of the same. Some loads of scrap being carried by the vehicles totally weighing 29.165 M.T. were intercepted and the scrap was also seized. On a check conducted by the authorities it was found that the appellant had removed 582.629 M.T. of ship breaking scrap during the period 26-4-1988 to 29-5-1988. The authorities were of the view that as per Notification No. 102/87 and 93/88 duty was required to be paid at the rate of Rs. 365/- per M.T. as also special Excise duty at the rate of 5% on BED. The appellants were issued a show cause notice and duty to the tune of Rs. 3,94,345.46 was de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts and circumstances of the case that the violations cited against the party are not intentional in nature. But due to the restrictive nature of the provisions of Rule 57H, I feel that credit can be given only in respect of the clearances made only after filing the declaration for availing Modvat credit, that is, from 24-5-1988 .... After taking into consideration the facts and circumstances of the case, the appellants were called upon to pay the duty of Rs. 3,10,245.09 in respect of the scrap cleared by them from 23-3-1988 to 23-5-1988. The scrap which was seized was also allowed to be redeemed on payment of a fine of Rs. 29,000/-. The learned lower authority in the facts and circumstances of the case desisted from levying any pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dit under Rule 57H. He further pleaded that Rule 57H(1) (i) (ii) were deleted but conceded that the same were still in force during the relevant period before us. He further pleaded that in view of the wording of the Rule 57H the inputs received after March, 1987 will not be eligible for the benefit of this Rule inasmuch as this Rule was in the nature of a transitional provision introduced for the temporary purpose of granting relief in cases where the appellants might not have filed the declaration out of ignorance at the time when the MODVAT provision became applicable in respect of the specified inputs and end-products as notified under Rule 57A. He pleaded that in the appellants case the inputs were taken in for production somewhere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The learned lower authority has not given any reasons as to how on a reading of the Rule 57H the appellants are not eligible for the same nor has he given any interpretation as to the scope of the Rule 57H. It is observed that Rule 57H at the relevant time provided for allowing of the credit by the Assistant Collector in respect of the inputs received by a manufacturer immediately before his obtaining the dated acknowledgement of the declaration made under Rule 57G if he was satisfied that such inputs are lying in stock or are received in the factory after filing the declaration under Rule 57G or such inputs are used in the manufacture of the final product which are cleared from the factory on or after the 1st day of March, 1987. It is se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is satisfied that provisions of either sub-rule (i) or (ii) are complied with and subject to the other provisions set out in the Rule. The point, therefore, that has to be considered is whether the ship received by the appellants can be taken to have been received immediately before obtaining the dated acknowledgement and whether the same has been used in the manufacture of the final product namely, the scrap after 1st March, 1987. The term immediately before has been set out in Venkataramaiya s Law Lexicon Legal Maxims as under :- Preceding the date and immediately before are interchangeable terms conveying the same idea. Preceding the date was held by the Supreme Court to mean prior to commencement of the liquidation. The sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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