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TMI Blog2010 (8) TMI 324X X X X Extracts X X X X X X X X Extracts X X X X ..... alleged against the appellant – Tribunal’s order not to be interfered - 11 of 2003 - - - Dated:- 3-8-2010 - Sengupta and Kanchan Chakraborty, JJ. REPRESENTED BY : Shri Amalesh Roy, for the Appellant. Shri Khaitan, for the Respondent. [Order]. The Court :- In terms of the judgment and order of the Division Bench [2002 (148) E.L.T. 927 (Tribunal)] the department referred the matter to this Court on the following questions of law for opinion (a) After availing the credit under the Modvat Scheme, the assessee/respondent reversed of the same for the purpose of enjoying the benefits under value Based Advance Licence and Duty Exemption Entitlement Schemes and ultimately could not avail the aforesaid two schemes by reason by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Rule 57-I of Rules 1944 read with Section 11A of the Central Excise Act, 1944 and also as to why the amount of penalty should not be imposed upon the dealer/respondent under Rule 173Q (bb) of the said CE Rules, 1944 and interest @ 28% should not be recovered and/or charged on them from the date of taking wrong credit under Section 11AA of the said Act, 1944. The said show cause notice was replied to by the respondent and the Assistant Commissioner thereafter heard the respondent and going through the records did not accept that explanation given in the reply by the respondent. Hence the said Commissioner by order dated 18th February, 1999 disallowed the Modvat credit of duty amounting to Rs. 6,45,293/- in terms of Rule 57-I of the said R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e inputs invoices and duly availed of the said Modvat credit and necessary entry was made and the same was produced before the appropriate officer of the revenue who had endorsed the same. After purchasing the said inputs the respondent started manufacturing goods in terms of and/or in accordance with the advice of their learned lawyer. Therefore the six months time mentioned in the proviso is not applicable on the facts and circumstances of the case. 6. In the context of the aforesaid submissions we now have carefully read the findings of the learned Tribunal. It appears to us that the learned Tribunal has found on fact that there is no dispute about cancellation of the advance licence and there was no requirement on the part of the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... second time, they were only reversing the debit entry of the credit already earned by them. 7. On the fact finding by the learned Tribunal we hold that the learned Tribunal has correctly held that provisions of Rule 57G(2) do not have any role to play in these circumstances and their contravention cannot be alleged against the appellant. In view of the factual finding and further appropriate application of law we do not think fit that judgment of the learned Tribunal should not be interfered with. Moreover, we have examined the provisions of Section 57G which is the basic provision for allowing credit and when the Tribunal on fact found this the other portion of the law has got no determinative value in this matter. 8. Under these circu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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