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TMI Blog2002 (2) TMI 790X X X X Extracts X X X X X X X X Extracts X X X X ..... e. The Assistant Commissioner had rejected the refund claim of the appellants for an amount of Rs. 12,75,201/- as unsubstantiated. Aggrieved by the said order, the Assessee preferred appeal before the Commissioner (Appeals) against the order of the Assistant Commissioner and the Commissioner (Appeals) rejected the appeal. 2. Briefly stated, the facts are that the appellants are manufacturers of submersible pumps and valves. During the period from 10-3-94 to 9-4-94, submersible pumps were exempted from Central Excise duty. However, parts of submersible pumps used captively for the manufacture of such pumps were liable to suffer duty till such time they were exempted by Notification 95/94 dated 25-4-1994. The appellants submitted their clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e inputs and in the meantime they discharged duty through PLA for the period 10-3-94 to 9-4-94. Subsequently when the credit was eventually made available, they could not make use of the same as the final product had by now been exempt from duty. They therefore filed a refund and claim for Rs. 12,75,201/-. The Assistant Commissioner rejected the same for the reason that there was no provision under the Central Excise law for granting such refund. 4. The appellants have argued in the grounds of appeal that the permission for availing credit of duty on the inputs lying in stock, at the time of filing the declaration, on 8-3-94 was eventually granted only on 20-4-94, because of which they could not utilise the above credit of Rs. 12,79,648/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in Formac Industries Reported in 1991 (37) ECR 95 (T). Therefore, they need not have waited for the permission of the Assistant Commissioner. The case law cited viz. decision of the Tribunal in the case of DCM Data Products deals with transfer of unutilised proforma credit, and rejection of the claim as time-barred, which is not the case here. I am therefore of the opinion that the Assistant Commissioner s order is maintainable in law and needs no interference from me. 4. It is against the above order of the Commissioner (Appeals) that the appellants have come in appeal on the following grounds : 1. The Asstt. Commissioner and the Commissioner (A) erred in holding that there was no provision under the Act/Rules for refund in cash of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t (Rule 57H) for clearance of the dutiable final products before the said date. The Commissioner (A) had failed to appreciate Rule 57H of CER, 1944 contemplated permission of the Asstt. Commissioner to avail such credit. The language in Rule 57-H of CER, 1944 very clearly states that .the Asstt. Commissioner may allow credit of the duty paid on the inputs received by a manufacturer immediately before obtaining the dated acknowledgement of the declaration made under the said rule (Rule 57G) if he is satisfied that 7. This would only mean that the Asstt. Commissioner s permission in mandatory for availing the said credit. Therefore, the Commissioner (A) cannot be heard to say that the appellants could have availed credit with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... separately furnishing particulars relating to duty payment in RG-23A part-II PLA during the relevant period and would show the minimum credit which they would have utilised during the said period if they had been permitted Rule 57H credit in time by the Asstt. Commissioner. This information may be appreciated by the Honourable CEGAT in deciding the appeal. 5. Heard Shri R. Raghavan, learned Counsel for the appellants. He reiterated the grounds of appeal and submitted that the orders passed by the authorities below are not sustainable. He also referred to the decision of the CEGAT in the case of DCM Data Products v. CCE, New Delhi reported in 1994 (71) E.L.T. 631 (Tribunal) wherein it was held that refund in cash of proforma credit for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed proforma credit can be transferred to Modvat Account and that such transfer is not hit by time bar. The finding given by Commissioner (Appeals) in para 5 refers to Rule 57-F which deals with the manner of utilization of inputs and the Modvat credit which provides for cash refund in case where credit of specified duty in respect of inputs have been used in the final product cleared for export under bond or used in the intermediary product cleared for export. Therefore, we do not find any infirmity in the orders passed by the original authority and the lower appellate authority and the appeal of the assessee has been rightly rejected by both the authorities. In this view of the matter, we find no merit in the appeal and the same is rejecte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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