9911796707
TMI Blog1997 (8) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to them in accordance with the provisions of Rule 56A of the Central Excise Rules, 1944. On 22-9-1982, they received 136.750 MTS of M.R. strips/coils from M/s. Jitendra Brothers, Bombay for which they filed D-3 intimations No. 68 and 69, dated 22-9-1982 and took proforma credit of duty amounting to Rs. 67,691.25 against the receipt of the said raw material without producing proper duty paying documents as required under Rule 56A. Therefore, a show cause-cum-demand notice for recovery of the amount of credit was issued on 15-7-1985, which demand was confirmed by the Assistant Collector. The lower appellate authority set aside the adjudication order on the ground that the demand was barred by limitation. Hence this appeal by the Revenue. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisional, we see no substance in this plea of the Department. Accordingly, we see no reason to interfere with the order of the Collector (Appeals) holding that the extended period of limitation is not available to the Department, uphold the impugned order and reject the appeal. 19-7-1996 Sd/- (Jyoti Balasundaram) Member (J) 4. [Contra per : S.K. Bhatnagar, Vice President]. - With due respects to Hon ble Member (Judicial), my views and orders are as follows : I observe that in this case at the time of receipt of consignment no duty paying documents had been produced. Since D-3 intimation had however, been filed the Superintendent examined the matter and noting the absence of duty paying document directed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as required to be submitted the action acquired a tentative character that means the availment was subject to production of proof of payment of duty. There is nothing on record to indicate that even subsequently the required proof was produced at any stage. Therefore, the credit taken by the respondent could only be treated as having acquired a provisional character and was subject to the fulfilment of the officer s direction to produce proof of payment of duty. The A.C. has rightly held that so called certificate issued by the supplier was not one of the prescribed documents and was not sufficient for the purpose of Rule 56A, in any case it did not contain the particulars of the payment of duty and other required information. He has theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. Ld. Member Judicial has also held that there is no allegation of suppression of facts or wilful mis-statement on the part of the appellants, in the show cause notice. Hence demands are barred by time. 12. On the other hand as can be seen from the order of Hon ble Vice President, Hon ble Vice President has taken a view that the credit taken by the respondent could only be treated as having acquired a provisional character and was subject to the fulfilment of the officer s direction to produce proof of payment of duty. 13. I have heard ld. DR. The respondents were not present at the time of hearing and the notice has come back undelivered. In the impugned order ld. Collector has referred to Rule 56A(5)(1) wherein time limit of six mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to M/s. Devidayal. It is clear from the judgment of Hon ble Bombay High Court that for recovery, the period is six months or five years as the case may be as laid down under Rule 56A(5) of the Central Excise Rules, which has to be read along with Central Excises and Salt Act, 1944. I would further like to observe that the term provisional use used in Rule 56A 2A pertains to utilising the credit on the assessee seeking permission on an application and pending the grant of such permission. The rule itself says that if the permission to avail of the procedure under the rule is eventually refused, then duty due on the goods cleared on the strength of the provisional credit referred to above, shall be paid forthwith (and without any demand ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
