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TMI Blog2009 (7) TMI 818X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellate Tribunal, West Regional Bench at Mumbai, has referred to the following question of law for the opinion of this Court under Section 35G of the Central Excise Act, 1944 :- Reference No. 17 of 2000 2. Whether the view of the Tribunal is correct in law that the credit of Modvat provided in Rule 57B in cases where the input is cleared in terms of notification granting partial exemption, based on the value of clearance i.e. Notification 175/86 could be taken at a point in time later than credit of duty actually paid is taken? Reference No. 4 of 2001 3. Whether the higher notional credit in terms of Rule 57B of the Central Excise Act, 1944 can be taken within a reasonable period i.e. six months from the date of recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as in absence of any specific provision under the Rule 57-B, notional credit under Rule 57-B at a later date than the receipt of inputs in the factory of the Modvat user cannot be allowed merely on the ground of lack of knowledge of the correct applicable provision of the Rules for the purpose of claiming Modvat credit under Rule 57B of the Rules. The Assistant Collector of Central Excise has, therefore, issued the show-cause notice on the respondent Company calling for their explanation as to why credit of central excise duty amounting. to Rs. 55,500.56 in DEB taken in RG23A Part II (Maaza) on Thums-up in violation of Rule 57B, should not be disallowed and reversed under Rule 57-I of the Rules and why penalty should not be imposed under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... additional higher notional credit should be taken within a reasonable time limit of six months. 9. Being aggrieved by the said order of the Tribunal, the Commissioner of Central Excise filed reference application and the Tribunal vide its order dated 17-9-1999 referred the above question of law for the opinion of this Court. Mr. Y.N. Ravani, learned Central Government Counsel appearing for the revenue has submitted that there is no provision in Rule 57B which permits the assessee to claim Modvat credit at a later date. He further invited the Court's attention to the Board's letter dated 7-9-1988 on the basis of which show-cause notice was issued on the respondent-assessee. The issue was raised in RAC meeting (Hyderabad) on 12-12-19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it could be taken within a reasonable time after the receipt of the inputs and extended the same principle by further holding that considering the entire scheme of the Central Excise Act and allied matters, the period of six months was a reasonable period. 12. In Commissioner of Central Excise, Pune v. SPM Tools, 1998 (99) E.L.T. 147 (Tribunal), the Tribunal has rejected the reference application filed by the Central Excise department on the ground that there is no bar expressly or impliedly provided for in any of the relevant Rules disentitling the party from availing of credit at a later date and this being the position, the issue as formulated does not give any rise to an issue of law worth referring to the High Court. 13.̳ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation for recovery of duty escaped. 14. This Court has also taken similar view in the case of Torrent Laboratories Private Limited v. U.O.I., 1991 (55) E.L.T. 25 (Gujarat) wherein it is held that recovery of credit wrongly availed of within reasonable period can certainly be effected, in absence of specific period of limitation. The Court further held that provisions of Section 11-A of the Central Excise and Salt Act, 1944 cannot be read into Rule 57-I, special provision regarding recovery of Modvat Credit wrongly availed of to which the Legislature did not intend general provisions of Section 11A. Based on the aforesaid judgments of the Tribunal as well as this Court and the Apex Court, the view of the department can hardly be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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