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TMI Blog2001 (5) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... ground that the Modvat credit had lapsed on 1-3-1997 under Rule 57F(17), a new sub-rule introduced (as part of budgetary changes) by Notification No. 6/97-C.E. (N.T.), dated 1-3-1997. In the appeal filed by the party, the Commissioner (Appeals) by Order, dated 28-4-2000/3-5-2000 upheld the order of the Assistant Commissioner. Hence the present appeal before the Tribunal. 2. The matter has come up before this Bench pursuant to Referral Order, dated 16-2-2001 passed by the learned Single Member who, upon hearing both sides, felt that the issue raised in the appeal be examined by a Larger Bench. 3. The issue before us is whether, as on the date of the refund application, the appellants were entitled, under sub-rule (13) read with sub-rule (17) of Rule 57F, to refund of the amount of credit which they had earned prior to 1-3-1997 on the inputs used in the manufacture of the final product exported under bond without payment of duty. 4. Sub-rule (13) of Rule 57F, under which the appellants claimed refund of credit, reads as under :- Where any inputs are used in the final products which are cleared for export under bond or used in the intermediate products cleared for export in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edit in terms of sub-rule (13). Rule 57F(17) merely provided for lapsing of the balance lying in credit as on 1-3-1997. However availability of credit was not the criterion for the grant of refund under Rule 57F(13). Therefore, the appellants were entitled to the refund under Rule 57F(13) irrespective of lapsing of credit on 1-3-1997. Counsel further submitted that, by virtue of the non-obstante clause mentioning Rule 57A and sub-rule (12) of Rule 57F, the provisions of sub-rule (17) of Rule 57F had over-riding effect only on the said Rule 57A and the said sub-rule (12) and not on sub-rule (13). Any proceedings under sub-rule (13) was not affected by anything contained in sub-rule (17) and, therefore, the claim of the appellants for refund of credit under sub-rule (13) was not limited by the lapsing provisions of sub-rule (17). In this connection, ld. Counsel relied on the apex Court s decision in AIR 1987 Supreme Court 117. Counsel further contended that the orders of the departmental authorities were contrary to the instructions of the Central Board of Excise and Customs contained in their letter No. 345/29/97-TRU, dated 12-12-1997. He relied on the Board s letter in support of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. v. C.C.E., Jaipur [2000 (115) E.L.T. 596 (Tribunal) = 2000 (41) RLT 215 (CEGAT)], wherein it was held that, since the credit of duty had lapsed on 1-3-1997, the refund claim filed on 11-7-1997 could not be granted. With regard to the appellants alternative plea, DR submitted that it was mandatory for a manufacturer-exporter to comply with the procedural requirements of Rule 12 for the purpose of claiming a rebate of duty under that rule. In this connection, ld. DR also sought to distinguish the case of Formica India Division (supra) from the instant case and maintained that the appellants were not entitled to any rebate of duty either. 8. We have carefully examined the submissions. The appellants, who had manufactured and exported picture tubes under bond without payment of duty during the period October to December, 1996 had credit of duty [paid on the inputs used in the manufacture of the picture tubes] lying in balance in their Modvat account as on 28-2-1997 and they could not utilise such credit towards payment of duty on any final products cleared for home consumption or for export on payment of duty in terms of sub-rule (13) of Rule 57F. But such credit of duty lying in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on para 68 of the Apex Court s judgment reported in AIR 1987 Supreme Court 117 appears to be convincing. What the apex Court observed in para 68 was that the provisions embraced in a non-obstante clause would not be an impediment for the operation of the enactment which contained that clause. Applying this test to the non-obstante clause relied on by ld. Counsel in the instant case, we observe that the said clause only meant that the provisions viz, Rule 57A and sub-rule (12) of Rule 57F mentioned in the clause would not be an impediment for the operation of the substantive provisions of sub-rule (17). It did not mean anything in relation to sub-rule (13). A plain reading of the provisions of Rule 57F is enough to show that, after lapsing of credit on 1-3-1997 under sub-rule (17), there can be no refund of credit amount after that date under sub-rule (13). The appellants case is not even covered by the exception provided under the proviso to clause (b) of sub-rule (17). 9. The Board s letter dated 12-12-1997, was not a departmental circular. It was only a letter clarifying the legal position of a refund claim filed by a manufacturer before 1-3-1997 and, in the particular facts ..... X X X X Extracts X X X X X X X X Extracts X X X X
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