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TMI Blog1998 (9) TMI 354X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal. 2. 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 Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T), the Tribunal held that the applicants' 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cash through TR-6 challan by them, on account of the wrongly availed Modvat credit. The implication 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 app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allying tactics by non-implementation of the Order by erroneously reading the same in a mis-interpreted way. 12. Arguing 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bjection of the Revenue is as regards the same very points which were taken up earlier by the Commissioner in support of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case. Similarly, we find that much is sought to be made by the Department from the term 'under the law'. We find that 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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