9911796707
TMI Blog2001 (2) TMI 626X X X X Extracts X X X X X X X X Extracts X X X X ..... he products under Heading 4819.90 of the tariff at nil rate of duty. This sub-heading covers cartons, boxes, containers and cases, of paper or paperboard other than those specifically included in Heading 48.19. The jurisdictional Superintendent and Assistant Collector visited the appellant s factory on 2-5-1989. A show cause notice, dated 12-5-1989 was issued to the appellant shortly thereafter. This notice proceeded on the assumption that the cups and their lids were classifiable under sub-heading 4823.90 of the tariff, apparently on the view that these are other articles of paper or paperboard specified in Heading 48.23. It said, Whereas on detailed scrutiny of classification list and examination of the manufacturing process and discussi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the notice, on the ground that the condition in that notification that Modvat credit should not be availed of had been contravened. The Assistant Collector confirmed the notice demanding duty for the period 1-9-1990 to 4-10-1990. He vacated the demand for duty for subsequent period on the ground that the benefit of Notification 67/82 would be available since the appellant had not availed Modvat credit after that period. 4. The manufacturer appealed this order to Collector (Appeals), seeking the availability of Notification 67/82. The Collector (Appeals) denied this claim on the ground that the condition in the notification that Modvat credit should not have been availed of was not complied with. Hence this appeal. 5. In a series of j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 6. However, the ratio of these judgments cannot now be made applicable. This is as a consequence of the Finance Act, 2000. This Act provides that a notice can be issued for recovery of short levy as a result of change in the classification of goods or their value, notwithstanding that the classification list or price list had been approved, and notwithstanding judicial pronouncements to the contrary. By Section 110 of the Finance Act, 2000 this provision has retrospective effect from 17th November, 1980 onwards. Therefore, the demand for duty on the ground that the classification should be under Heading 4819.12 has to be confirmed. The correctness of the classification now determined is also not questioned. 7. The contention of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court was that if such duty is payable the manufacturer would be entitled to set off the duty paid on the intermediate product by Notification 71/71. This had been denied because the procedures set out in Rule 56A had not been followed. The Supreme Court noted that the manufacturer had contested the duty liability on intermediate product and hence did not pay it. It could not hence have ordinarily complied with the requirements of Rule 56A. It held that in that situation it is not proper to deny the benefits of Rule 56A on grounds that some procedures should have been complied with earlier. 8. The Tribunal in its decision cited before us has taken a somewhat similar view. It has held that the benefit of Rule 56A for the acetic acid use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s is in fact what it did when the classification list was changed to this heading. To say therefore, in these circumstances, that the appellant is not entitled to exemption does not appear to be either equitable or correct. 10. In somewhat similar facts, the Supreme Court has said that the Modvat benefit could be taken by reversal of the Modvat credit taken. The Department denied the manufacturer benefit of Notification 69/86 (as amended by Notification 106/88) on the ground that it had taken credit of the duty paid on the copper wire bars received by it which it converted into winding wires. The manufacturer cleared part of the winding wires on payment of duty and claimed the exemption under Notification 69/86 for the remaining part. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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