9911796707
TMI Blog2000 (4) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Modi Cement Limited in their RG-3A Part-II in August 1993 in respect of HDPE woven Bags/sacks received by them during October 1987 to October 1998 finally assessed to duty under Heading 6301.00 of Central Excise Tariff and had paid duty accordingly at the manufacturers end (factory of origin) would be correct, legal and proper. Specially when there is neither a revision in the classification nor a variation in the rate of duty/duty paid at the factory origin, and pre-requisites of Rule 57E of the Central Excise Rules was not complied with. (ii) Whether in regard to the facts and circumstances of the case it is proper, correct and legal to hold that the Modvat credit taken after a lapse ranging from 2 years and 9 months to 5 years and 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Rule 57G of the Central Excise Rules." 2. In the Final Order, the Tribunal had, relying on its earlier decision in Collector of Central Excise, Bhubaneswar v. Orissa Cement Ltd. [1993 (47) ECR 123] held that HDPE bags/sacks classifiable under Chapter sub-heading 3923.90 was eligible for modvat credit when used as inputs and held that the assessee's claim for modvat credit for HDPE bags as packing material for cement were eligible inputs under Rule 57A of the Central Excise Rules during the relevant period. The Tribunal had observed that it was not in dispute that the appellants had taken credit on HDPE bags in their RG. 23A Part-II on 30-8-1993 and had intimated it to the Department as per RT-12 Returns for the month of August, 1993 tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under Heading 63.01 and were assessed to duty at the factory of origin. The duty was not paid under protest. The consignees, namely M/s. Modi Cement Ltd., the Respondents therein, could not therefore avail the modvat credit on such HDPE bags in August, 1993. Therefore, no reliance could have been placed on the decision in Orissa Cement case classifying HDPE bags under Chapter Heading 3923.00 even by adopting the ratio of the Apex Court ruling in Citadal Fine Pharmaceuticals case. Therefore, ld. JDR submitted that the questions of law as formulated in the Reference Application had arisen which may be referred to the Hon'ble Madhya Pradesh High Court. 4. Shri A.K. Jain, ld. Advocate for the Respondents who opposed the Reference Applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Heading 6301.00 of the Central Excise Tariff Act. M/s. Modi Cement Ltd. did not avail the quantity of credit on HDPE woven sacks at the relevant time. Subsequently in August 1993 they made a note in their RG. 23A Part. I and took credit for HDPE bags for the period October 1987 to October 1990. In terms of Rule 57G every manufacturer intending to take credit of duty paid under Rule 57A has to file a declaration indicating the description of the final products and the inputs intended for use in each of the final products and such other information as the Asst. Collector may require and obtain a dated acknowledgement on the declaration. In the modvat declaration filed by the Respondents herein on 28-3-1987 HDPE bags were declared under Hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Apex Court held that reasonable period has to be construed in the facts of each case. After considering the Reference Application filed by the Department and the submissions made by both the sides, we are of the view that the following question of law has arisen from the Final Order referred to above viz., "whether in the facts and circumstances of the case, it was legally correct for the Tribunal to allow taking of Modvat credit by the Respondents herein after a lapse of between 33 and 69 months from the date of receipt of the inputs, in the absence of any reasonable period having been specified under the Rules for taking of Modvat credit". The above statement of facts and point of law are hereby submitted to the Hon'ble High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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