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TMI Blog1991 (4) TMI 267X X X X Extracts X X X X X X X X Extracts X X X X ..... e said product was taken out of the Tariff Item 68 and came to be classified under Item 15A and hence Notification 201/79 which was with reference to input falling under Tariff Item 68 used in the manufacture of excisable goods became inapplicable. The decision of the Assistant Collector that the credit of duty on chlorinated rubber, as in stock as on 1-3-1982 or which was received subsequent to 1-3-1982, which had already been utilised by them in terms of the said notification was recoverable from them was upheld by the Collector (Appeals). Thereby the present appeal. 2. When the appeal, after the rejection of the Stay Petition by the Special Bench C of the Tribunal, was heard by the said Bench, it was transferred to this Bench on the learned Departmental Representative pointing out that the matter falls within the jurisdiction of Regional Bench as it relates to credit in RG 23 with which view the learned Counsel for the appellants also agreed. Accordingly, the appeal was posted for hearing before us when the appellants were represented by S/Shri K.L. Ganguly and Subir Ganguly, learned counsels and the respondent Collector by Shri A. Chaudhury, learned Departmental Representativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat reclassification of duty-paid goods at the users end is not warranted. The duty-paid character of the input is not lost if the credit of duty paid thereon is taken credit of. Reliance was also placed on the Tribunal s decision in Collector of Central Excise, Chandigarh v. Hindustan Wire Products reported in 1985 (19) E.L.T. 141 and another case reported in 1988 (33) E.L.T. 172 (Wipro v. Collector of Central Excise).[3] 5. Shri M.N. Biswas, learned Senior Departmental Representative defended the decision of the lower authorities. He stated that para 8 of the Notification No. 201/79 is not satisfied in this case. Hence credit cannot be utilised as claimed by the appellant. He distinguished the decision of the Special Bench in the case of Addisons Paints Chemicals cited by the appellants counsel. He stated that in that case the inputs in question had been received before 28-2-1982 after which the classification of the product changed from Item 68 to 15A of the Tariff. In the matter before us, part of the goods were received after 1-3-1982 and to this extent, the present case is distinguishable from the Addisons matter. He also submitted that the assessment of the final produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ween 1-3-1982 and 21-4-1982 a total quantity of 5565 Kgs for captive consumption vis-a-vis clearance from non-duty paid stock, as stated in the order-in-original. As correctly pointed out by the appellants the goods cannot be reassessed at their hands, simply because the classification changed from 68 to 15A(1) with the effect from 1-3-1982. The effect of such changes would affect only clearances from the manufacturers end. Here, the inputs had been cleared from the manufacturers thereof before 28-2-1982 and had been correctly assessed under Item 68. Even the consignment of 500 Kg. which had been received by the appellants on 23-3-1982 had been cleared from the manufacturers on 26-2-1982. Its date of receipt in the factory of the appellants has no bearing on its assessment and the same cannot be reassessed because of the change of classification during the intervening period between the date of clearance from the manufacturers and the date of receipt of the same in the appellants factory. It is nobody s case that the inputs were removed by the appellants from their factory as such under para 6 of the appendix to the Notification No. 201/79 without being used in the manufacture of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inputs. The goods fell under Item 68 and discharged the duty liability thereon. It is the duty paid thereunder that determines the eligibility for the benefit of Notification No. 201/79 and not the Tariff Change subsequent to the assessment and clearance at the manufacturers end. The appellants counsels have cited the decision of the South Regional Bench in Collector of Central Excise v. Wipro Information Technology in support of their contention that the credit taken cannot be reversed due to subsequent change in the Tariff. In the said case not only was credit of duty paid on inputs taken in the RG 23 account but it was also utilised for payment of duty subsequent to such utilisation of the credit, the final products became exempt from duty and the department wanted to recover the credit so utilised, to the extent of duty corresponding to the inputs which were in stock and which would have been used in the manufacture of fully ex- empted goods. This stand of the department was negatived by the Tribunals in the said decision. This has no application in the present case. Hence, credit was not utilised before the change of tariff classification, but afterwards. However, the final ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the facts of this case. There, it was held by the Tribunal clarifying their earlier decision in the same matter, reported in 1988 (37) E.L.T. 299 that the benefit of credit of countervailing duty under Item 68 on inputs taken under Notification No. 103/61 was not to be denied by applying Notification 109/80 whereby the procedure set out in Rule 56A was to be followed. Rule 56A, by virtue of Notification 104/79, was made out of bounds for Tariff Item 68 goods, insofar as countervailing duty was concerned. The Tribunal held that the fact that for availment of the exemption under Notification 105/61 the procedure in Rule 56A has to be followed would not mean that the procedure in Rule 56A can have the effect of nullifying or negating the effect of the notification. In the present case, Notification 201/79 continued to be in force and credit of duty paid under Item 68 of the Tariff before 28-2-1982 was taken in the RG 23 account on a quantity of 5215 Kg. of chlorinated rubber which was lying unutilised on 28-2-1982 and a quantity of 500 Kgs. of the said product received afterwards. 9. For the reasons discussed by us accepting the decision of the Special Bench C in the Addisons Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X
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