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TMI Blog1995 (11) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... s could have taken Modvat Credits and made from their [RG-23A]. 3. The facts in brief are that the appellants have been availing MODVAT Credit but are alleged to have opted out of Modvat Scheme from 9-10-1989 vide their letter dated 9-10-1989. It is alleged that balance of modvat credit of Rs. 14,215.97 and special duty of Rs. 1406.87 in the [RG-23A] Part-II should have lapsed. The appellants, however, on their own accord again again modvat credit of basic duty of Rs. 7200.00 and special duty of Rs. 360.00 in their RG-23A Part II vide entry No. 163 and 164 dated 13-10-1989. The Appellants, when they came to know of this mistake, again filed a letter dated 28-10-1989 to the Asstt. Collector informing him that they wish to conti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 30 Lakhs in the financial year and not in the middle of the year when the said amending Notification came thereto. The Memorandum further adds, we rolled out of Modvat and rolled back under the above circumstances, which are peculiar in nature and not far-seen by Rule 57-G . Since it was only a procedural error, not committed deliberately, the Memorandum states they be judged in a lenient light. 5. In the additional submissions the main points made are that the letter for opting out of Modvat Scheme was merely an offer to opt out of it and unless it was accepted they should be deemed to have continued to work under Modvat. In support of this the appellants have cited the case law AIR 1969 (SC) 180, which according to them, even though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of which it is difficult to accept the contention of the appellants now put forth in written statement that it was merely their intention to withdraw. There is nothing in Rules which refer to requirement of an assessee of offering to opt out of Modvat Scheme and the obligation of the Deptt. to accept or refuse to accept this request. It is for the assessee to opt in and out of the Modvat Scheme subject to all liability or advantage which such option may impose. Once the assessee has opted out of MODVAT Scheme and chosen to work under exemption, the balance in the Account Current has to be treated as lapsed and this cannot be realised in paying duty on the finished products removed under exemption. In case of Bangalore Body Builders (P) L ..... X X X X Extracts X X X X X X X X Extracts X X X X
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