9911796707
TMI Blog1997 (7) TMI 456X X X X Extracts X X X X X X X X Extracts X X X X ..... -1364/Cal/1995 [1996 (84) E.L.T. 86 (Tribunal)] dated 23-11-1995 (copies enclosed) :- "(i) Whether the order of the Hon'ble CEGAT, EB is legal and correct in allowing Modvat credit of the actual duty paid on the inputs when the right to Modvat credit accrued to the assessee on their filing of the declaration and obtaining dated acknowledgement on 12-6-1987 under Rule 57G on which date the credit was admissible at the rate of specified by the amending Notification No. 149-C.E., dated 20-5-1987 to the Notification No. 177/86-C.E., dated 1-3-1986 and hence right to credit also was restricted accordingly? (ii) Whether the order of the Hon'ble CEGAT, EB is legal and correct in ignoring the restriction on the credit admissible as stated in "1" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mounting to Rs. 3,36,517.96 on the said 28.55 M.T. of base/decorative papers lying in stock. On the relevant date i.e. 12-6-1987 when the appellants became eligible for taking the Modvat credits, the allowable credit was Rs. 800/- per metric tonne or the actual duty paid, whichever was less, vide Notification No. 177/86-C.E., dated 1-3-1986 as amended by Notification No. 149/87, dated 20-5-1987. Applying the above rate of Rs. 800.00 per M.T. The base paper being 28.55 M.T. lying in stock was worked out to be Rs. 22,840.00 which was less than the actual duty of Rs. 3,36,514.96 paid by the appellants. Accordingly, the Assistant Collector under his Order No. 1/39/Modvat/Tech/SBP/89, dated 20-4-1989 allowed the said lesser amount of Rs. 22,840. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court of Orissa. 3.1 Ld. advocate, Shri S.K. Bagaria on the other hand urges that the Tribunal decided the appeal of the respondent Co. herein purely on the basis of the facts and no question of law arises out of the same. According to him, Tribunal made the following findings of facts :- (a) M/s. Mangalam Timber Products Ltd. (in short the Company) filed its application under Rule 57H on 4-7-1988 and the permission under Rule 57H was granted by the Assistant Collector on 20-4-1989. The restriction about Modvat in respect of paper and paper board was in force only during 20-5-1987 to 7-12-1987. Thus, the said restriction was not in force either on the date of application under Rule 57H or on the date of grant of permission by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n under Rule 57G. 3.2 His further submission is that the questions mentioned in the reference application do not arise out of Tribunal's Order. Regarding first question, as reproduced in para 1.1 above, he submits that it assumes as if the credit had been allowed under Rule 57G. This assumption is not at all warranted because credit has been allowed by the Tribunal under Rule 57H, as contended by the respondent Co. herein. Regarding the second question, ld. Advocate's submission is that assumption in this question is as if the Tribunal has allowed the credit because the credit was availed by the respondent Co. herein at a later date when the restriction of lower rate of credit was no longer in operation. This assumption, submits the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, the question has to be determined on studying the Modvat credit scheme as a whole. That judgment holds against the respondent Co. herein after consideration of various submissions of both sides. 4.4 Likewise, opinion of the Third Member also holds, in para 26 of the impugned judgment while rejecting an argument of the ld. JDR, on the analogy of the filing of a Bill of Entry under the Customs Act 1962, that "........ there is no parallel provision regarding the rate of Modvat credit. The matter is to be decided with reference to the scheme as a whole including the Notification in question." 4.5 His further submission that the two questions do not arise out of Tribunal's judgment is also not sustainable. No doubt, first quest ..... X X X X Extracts X X X X X X X X Extracts X X X X
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