9911796707
TMI Blog2006 (8) TMI 340X X X X Extracts X X X X X X X X Extracts X X X X ..... within the stipulated period of 180 days and the credit of amount debited under Rule 57F(6) was taken in terms of Rule 57F(7). However, the respondents subsequently noticed that less credit was taken than the amount debited at the time of sending of the inputs for job work from the factory of the respondents. Therefore, credit for differential amounts was taken by them in the month of October, 2000, i.e. after about three to four years from the respective dates of receiving the goods. According to the Revenue, as per the show cause notice, the details of the inputs sent to the job workers, the amounts debited, and the amounts credited on receipt of the inputs after the job work were shown in the annexure to the show cause notice. Therefore, at the time of auditing the records of the party, it was pointed out that the party had taken the differential amount of credit after expiry of the stipulated period of 180 days and it was, therefore, asked to deposit the amount. Accordingly, the respondents deposited the amount on 13-2-2001 and thereafter the respondents preferred the claim of the said differential amount for refund under Section 11AB of the Central Excise Act, 1944 on 20-12-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le manufacturer who supplied the goods and later on they became aware of their eligibility for a higher credit under Rule 57B. This credit was taken during the same month, when the original credit was taken and the Tribunal held in that case that, there was no doubt about the eligibility of the respondents for availing the benefit of Modvat credit. It was observed that it is not as if the respondents had taken the credit after six months which can be taken as a reasonable limit within which they should take the credit, taking into consideration the provisions for refund under Section 11B of the Act. Relying upon this decisions, the learned authorised representative stated that since there was no time limit prescribed for taking credit on receiving the goods being taken after 180 days, the credit could be taken only within a reasonable time, and that the Commissioner (Appeals) had committed an error in holding that five years should be a reasonable time. He also pointed out from the particulars of debits and credits made for the period in question as stated in annexure to the show cause notice that there was gross ambiguity, and that there was no scope for taking of lesser credits t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... took credit of the differential amount, it was in the nature of correction of a mistake and the action could not be called as of taking of credit. Therefore, the existence of the debarring provisions on the date when differential credit was taken did not bar the taking of such credit. (c) The decision of the Tribunal in Traco Cable Co. Ltd. v. CCE, Cochin reported in 2003 (162) E.L.T. 596 (Tri.) was cited for the same proposition emanating from paragraph 4 of the order that when initial credit was taken within a prescribed period, the additional or different credit being taken later, the bar created by the amended rule was not applicable. (d) The decision of the Tribunal in Prayas Castings Ltd. v. CCE, Ahmedabad reported in 2003 (159) E.L.T. 185 (Tri.) was cited for the proposition that the concept of reasonable period can be invoked only when such action would adversely affect the rights of a citizen, and that the application for additional credit cannot be denied on the ground of delay beyond six months when there is no statutory prescription of time with reference to making such application. In that case, application for taking higher credit was filed aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... error committed in writing the amounts while taking credit which were subsequently found to be distorted and sought to be set-right. However, because of insistence of the department, the credits subsequently taken was reversed and the application for refund was filed. There is no dispute over the fact that refund application was filed within time. 7. It will be noticed from the provisions of Rule 57F(7) that the credit was to be taken when the inputs were received back in full in the factory. The manufacturer was eligible to take such a credit under that sub-rule. However, unlike sub-rule (5) of Rule 57G, which came to be inserted on 29-6-1995 like its earlier form in sub-proviso to sub-rule (2) of Rule 57G, laid down the time limit for taking the credit by providing that credit shall not be taken by the manufacturers after six months of the date of issue of any document specified under sub-rule (3) of Rule 57G. However, sub-rule (5) of Rule 57G will not directly apply to the credits taken under sub-rule (7) of Rule 57F. Therefore, there is no time limit specifically provided for taking of the credit in cases where the inputs were received in full in the factory of the manufactur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t they have not been considered in their proper perspective by the Commissioner (Appeals). The learned authorised representative for the department when asked to check up each of these items, which are explained, stated after checking them up that, there appears have been bona fide mistakes committed in writing these entries at the time of taking the credit. That being so, there is no point in remanding the matter because, since the credits were taken within the prescribed period of the return of the goods in full to the factory, the only question that remains is of correcting such bona fide errors in writing these credits. The mistakes, so corrected would entitle the respondents to its claim for refund of Rs. 1,68,771/-, being the amount of difference of credits, as worked out in Annexure A to the show cause notice, and there is no dispute over this aspect. In this view of the matter, the impugned order passed by the Commissioner (Appeals) accepting the refund claim of Rs. 1,68,771/- by setting aside the order-in-original is upheld for the reasons given hereinabove. The appeal is therefore, dismissed. (Pronounced and dictated in the open Court) - - TaxTMI - TMITax - Central ..... X X X X Extracts X X X X X X X X Extracts X X X X
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