9911796707
TMI Blog2002 (12) TMI 257X X X X Extracts X X X X X X X X Extracts X X X X ..... turer of lubricating oils falling under Chapter 2710.16 of the schedule to the Central Excise Tariff Act, 1985. Central Excise duty was imposed on Lubricating oils with effect from 1-3-94. The appellant have obtained Central Excise Registration on 11-3-94. For the purpose of availing Modvat credit of duty paid on the inputs viz., base oils, additives and metal containers, they filed a declaration in terms of Rule 57G on 18-4-1994. The appellant were manufacturing lubricating oils even prior to 1-3-94, when the goods were exempted from payment of duty. With effect from 1-4-1994, the system of issuing gate passes for removal of excisable goods was replaced by invoice. In respect of inputs received prior to filing of declaration i.e., 2-3-94 to 17-4-94, the appellant have filed a letter on 27-6-94 seeking condonation for the delay in filing Rule 57G declaration and sought for credit of duty amounting to Rs. 11,07,279/-. After due process, the then Asstt. Commissioner vide O-in-O No. 13/96 has allowed credit of duty to the extent of Rs. 8,13,816/- and disallowed the balance of credit to the tune of Rs. 2,89,487/- on the ground that (1) the appellant did not file any declaration as envi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly relied on the following decisions in support of their contentions. 1. Icycold Commercial Enterprises v. C.C.E. - 1994 (69) E.L.T. 337 (T); 2. Kesoram Rayon v. C.C.E. - 1988 (37) E.L.T. 312 (T) 3.2 In the impugned order the matter has been decided beyond the scope of show cause notice. The show cause notice was issued to disallow Modvat credit of Rs. 2,89,487.08. The Modvat credit was denied based on the reason that the appellants have not filed any declaration under Rule 57H and also for the reason that the goods were received prior to registration. But in the impugned order there is no mention about the original reasons mentioned in the show cause notice but denied credit for the other reasons not mentioned in the show cause notice. Thus the learned Assistant Commissioner has decided the issue beyond the scope of show cause notice in violation of the principles of natural justice. On this score alone the impugned order is liable to be set aside. 3.3 In any event the demand of Rs. 2,89,487.08 is time barred. The period of dispute was 2-3-94 to 18-4-94. The date of show cause notice was 6-10-94 and received by the appellants on 19-10-94. Hence the demand is time b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y appeal against this order as could be seen from the grounds of appeal filed in the Hon ble Tribunal. Hence the learned Asstt. Commissioner should have allowed the credit. 3.7 In the order No. 51/96, dated 22-4-96 the then Asstt. Commissioner had demanded a sum of Rs. 56,68,244.66. The credit was disallowed for the reason that credit was taken on documents not in favour of the appellant but only endorsed copies of the documents. On appeal, the Commissioner (Appeals) had allowed vide his order in appeal No. 219/97, dated 9-10-97 with a direction to the Asstt. Commissioner to extend credit in both cases after due verification that no one else has availed the credit. Admittedly M/s. IBP has not taken credit as they are only dealers and they endorsed the invoices to the appellant. Hence the appellants are eligible to take credit. The department have filed an appeal before the Hon ble Tribunal and the Tribunal in its order dated 5-12-2000 has observed that In view of the matter, we would allow these appeals as a matter of remand to the original authority to re-determine the issue as per the original remand order of Commissioner (Appeal) subject to following the decision of the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t get register himself up to 31-12-94. In other words the Tribunal would have allowed the Modvat credit if the dealer had got himself registered by 31-12-94. Further in the said case the document under dispute was invoice issued by a dealer and not delivery challan cum invoice issued by PSU to a job-worker. 3.12 In the present case the appellant is a job worker for M/s. IBP etc., and no sale has taken place and therefore the decision of the Larger Bench cited is not applicable. 3.13 The Division Bench of the Hon'ble High Court of Bombay in the case of Bombay Goods Transport Association v. U.O.I - 1995 (77) E.L.T. 521 (Bom.) held that duty paid character of the inputs can be proved by other genuine documents for the purpose of taking credit. In the present case most of the invoices have been issued by M/s. IOC and the duty paid nature of the inputs are not under dispute. In view of the above scenario, the above judgment is applicable with greater force to the present case and this judgment was not brought to the notice of the Hon ble Tribunal in the case of Balmer Lawrie cited above. 3.14 The entire dispute was due to the confusion prevailed during the transitional period. Dut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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