9911796707
TMI Blog1998 (9) TMI 354X X X X Extracts X X X X X X X X Extracts X X X X ..... At the time of hearing the said applications, the issues were strongly debated by both sides, when Shri A.K. Jain, learned Advocate appeared for the applicant company and Shri P.K. Jain, learned Chief Departmental Representative for the Revenue. 3. For disposing of the two present applications, it is necessary to refer to the brief facts of the case culminating into the Order dated 4-11-1997 passed by the Tribunal. 4. Vide the Order-in-Original dated 8-6-1994 passed by the Commissioner of Central Excise, Raipur, Modvat credit of Rs. 52,69,085.12 availed by the applicants during the month of August, 1993 on HDPE bags received by them during the period - 1987-88 to 4-10-1990 and used as packing material for Cement was disallowed. Out of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cants claim for Modvat credit for HDPE bags use as packing material for Cement is an eligible input under Rule 57A at the relevant period. 7. As regards the second issue of the claim having not been availed within a reasonable period, the Tribunal in Para 8 of the said Judgment observed as follows :- .....We are inclined to accept the above submission of the learned Advocate in the light of the Apex Court judgment in Citadel Fine Pharmaceuticals case (supra) holding that what is reasonable time would depend on the circumstances of each case. In Para 9 of the said Order, the Tribunal observed as under :- As a result, having regard to the discussions above, we allow the appeal and set aside the impugned Order. Appellants will be e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the Tribunal s Order would be to ask for refund of the said amount in cash and the same cannot be re-credited in RG-23A Part-II; (vi) The Tribunal has not directed that even when the HDPE bags were finally assessed at the factory of origin under 6301.00, the Modvat credit should be allowed. 10. Being aggrieved with the above communication of the Assistant Commissioner, the applicants have filed the present applications - one for implementation of the Tribunal s Order and another for issuing a Contempt Notice to the Department for its attempt in scuttling the Final Order of the Tribunal. 11. Arguing on the applications, Shri A.K. Jain, learned Advocate for the applicants submitted that once the Tribunal has decided the contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guing on behalf of the Revenue, Shri P.K. Jain, learned C.D.R. submitted that vide the said Order, the Tribunal has directed the Department to grant the consequential benefit under the law. Arguing on the phrase under the law, he submitted that the Apex Court in the case of C.C. Ex. v. Modella Steel Alloy reported in 1997 (96) E.L.T. 20 (S.C.), has held - in accordance with law - means according to law as interpreted in binding precedents. As the said order of the Tribunal is based upon the case of Orissa Cement Ltd. which clearly observed - only if the said goods had been classified under Chapter 63 at their place of manufacture, would they lose their liability for Modvat benefit? In the instant case also, the goods are classified un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned Order, which were under challenge before the Tribunal. While recording the facts, the Tribunal in its Order No. A-1066/97 dated 4-11-1997 has taken note of the fact that the Modvat credit was not being availed by the applicants as the bags in question were being received by them under Chapter 63. From this, it is evident that the fact of the HDPE bags being cleared at the manufacturer s end under Chapter 63 was in the knowledge of the Tribunal, at the time of passing of the Order. In fact, the entire controversy was on that point. Had the bags been classified under Chapter 39 during the relevant period, there was no occasion for the Department to deny the Modvat credit to the applicants. The Modvat credit was denied as the Chapter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the use of this phrase in the final part of the Tribunal s order does not give any authority to the Department to re-adjudicate the case either on the same points or may be on the different points altogether. This way, there would be no end to the litigation. After getting the decision from the Tribunal on the disputed issues, it is not open to the Revenue to restart the same proceedings on altogether different issues. 14. Similarly, we find that the view of the Department that CEGAT has allowed relief with conditions, which authorise the Department for examining the claim for Modvat credit ab initio is not proper and justified. As observed by the Honourable Supreme Court in the case of Kamalakshi Finance Corporation Ltd., the principl ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
