9911796707
TMI Blog2006 (9) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... dit of duty on the refractory materials received in May, 1992 as to whether refractory materials were entitled to Modvat credit On 3-6-1992, Supdt. of Central Excise wrote to the appellant informing him that no Modvat credit was available for refractory material. The appellant protested, but stopped taking credit for the subsequent receipts of the refractory material. Proceedings were initiated against the assessee by the Revenue for the recovery of credit amount to Rs. 20 lakhs, taken in May 1992 and utilized for discharging Central Excise duty on final products. This dispute was finally settled in favour of the appellant by the Final Order of this Tribunal in Appeal No.E/1642/96-NB dated 16.10.97. During the pendency of the proceeding ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in 2002 (147) E.L.T. 933 (Tri.-Del.) and this Tribunal had held that the non-availing of credit by the assessee in such cases within the limitation of six months, is a result of the injunction placed by the Revenue authorities and upon the vacating of that injunction under the appellate order, the assessee is entitled to avail itself of the credit and the time limit in Rule 57G(5) did not apply to such disputed cases. 4. Revenue contests the claim on two grounds. The first is that there was no injunction in the present case and the assessee stopped availing of the credit on its own. It is being contended that the order in appeal of this Tribunal related only to the denial of the credit of about Rs. 20 lakhs taken in May, 1992 and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been taken by you in respect of inputs of sub-heading 2713.12, 6808.00, 6909.00, 3816.00, 6904.00, 3544.00 which were found mentioned in your declaration under Section 57G filed before the Central Excise Deptt. also state whether you have utilized the same also specify monthwise amount. Ans. I am to state that it is come to that we have taken the credit on the inputs declared to the department. It is also to intimate that the credit taken on above mentioned inputs has not been utilised towards payment in clearance of first product. Since the credit is still lying unutilised in RG23 Part-II, hence we shall be debiting under intimation to you. Since we were unaware the credit has been taken without any intention. We have taken Modvat credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Tribunal in the case of Orient Paper Industries Ltd. case (Supra) inasmuch as, in that case also, the assessee had not availed the credit during the period of pendency of the appeal and the Tribunal held that non-availing of the credit amount during the pendency of the dispute was the result of the injunction placed by the revenue and the credit could be taken. As regards the Revenue s contention that credit should have been taken within six months of the order in appeal of the Tribunal, we are not able to find any legal authority for this contention. It is clear that Rule 57G(5) cannot be the authority for such contention, because that rule relates to the period for taking credit in normal circumstances and not to cases where asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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