9911796707
TMI Blog1995 (10) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... received under certified challans of M/s. Hindustan Copper Ltd. (HCL) which are not treated as valid duty paying documents for the purpose of taking MODVAT Credit under Rule 57G. Accordingly, the appellants herein were asked to show cause as to why the aforesaid MODVAT Credit be not reversed and if utilised, be not recovered from them. A penalty under Rule 173Q(bb) was also proposed to be imposed on the appellants. 1.2 In reply to the show cause notice, the appellants submitted that HCL was a Government of India Undertaking and there was a trade notice, based on Central Board of Excise and Customs (C.B.E.C. s) letter which clarified that certificates issued by Public Sector Undertakings/Canalising Agencies like M.M.T.C./S.T.C., enable a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rged that the issue whether HCL certified challans are valid for the purpose of taking MODVAT Credit has been held in the affirmative by the ld. Honourable Member in the case of Devidayal Mahendra Corporation (supra). Therefore, the appeal deserves to be allowed on merits. 3.1 Ld. J.D.R., Shri S.N. Ghosh on the other hand, urges that Tribunal s aforesaid order in Devidayal Mahendra Corporation (supra) has been passed on a concession by the ld. S.D.R., when the Tribunal records in para 6 of the above report that it is not the case of the Department that this letter is not relevant to the facts of the present case . Ld. J.D.R. submits that perusal of the Trade Notice 37/88 based on Board s aforesaid letter mentioned in para 1.2. clearl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /buyers, who, in turn, on the strength of such endorsed certificates, have raised Modvat credit of duty by treating these endorsed certificates as duty-paying documents. 3. It is reiterated that the certificates issued by the Public Sector Corporations are only considered as duty-paying documents for the purpose of rules 56A and 57G and these certificates cannot be further endorsed to anybody for availing Proforma/Modvat credit. Such endorsed certificates are, therefore, not treated as duty-paying documents for these rules and, therefore, no credit can be raised on such endorsed certificates. 4. It is also noticed that certificates issued by these Public Sector Corporations, in such cases, are not in the proforma prescribed and circulat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .. of..................Customs House. The proportionate customs duty paid by us on the quantity sold to M/s....................... was Rs............ We hereby declare that we have not claimed any refund of countervailing duty from the Customs authority on the aforesaid quantity of imported material covered by this certificate. Regional Manager 3.3 We also reproduce Trade Notice No. 93/89, dated 16-11-1989 relied upon by the Assistant Collector in his Order-in-Original as also the intervening Trade Notice No. 21/89, dated 24-2-1989 and Trade Notice No. 68/89, dated 25-8-1989 of Bombay Collectorate-I. Reading upto Trade Notice No. 93/89, as follows :- TRADE NOTICE NO. 21/89, DATED 24-2-1989 Attention of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redit, only if the entire material covered by such document is sent to the other person. The Trade Notice No. 21/89 may be deemed to have been modified to the above extent ab initio. TRADE NOTICE NO. 93/89, DATED 16-11-1989, BOMBAY COLLECTORATE-I Attention of the Trade is invited to the Collectorate Trade Notice No. 68/89, dated 25-8-1989 under which the trade was informed that the certificates issued by all Public Sector Undertakings/canalising agencies in respect of supply of indigenous products can also be endorsed once for the purpose of availing Modvat credit, if the entire material covered by such documents is sent to another person. 2. The matter has been further examined and it has been decided that certificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not correct since the aforesaid period occurs after the crucial date, 15-11-1989, mentioned in para 4.1 above. Tribunal s Judgment in Devidayal Mahendra Corporation (supra) does not take into account subsequent Trade Notices of 1989, particularly of 93/89, dated 16-11-1989. 4.3 But the foregoing cannot be considered a final finding. Trade Notices relied upon by either side have been issued by Collector, Bombay. While Collectors are generally issuing a trade notice on the strength of a letter of the Board, that may not be invariably so. Under the Central Excise Rules, 1944, Collector is also authorised to issue supplementary instructions. Proviso to sub-rule (2) of Rule 57G authorises the C.B.E.C. to prescribe any other document as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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