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TMI Blog2011 (1) TMI 684X X X X Extracts X X X X X X X X Extracts X X X X ..... eme during the period 1992-96. One of the conditions of the Notification (condition V) was that, when the importer exported his final product for fulfillment of export obligation under the scheme, no input stage credit should have been taken in respect of such export goods so that the benefit of exemption under the Notification could be availed in respect of imported raw materials. When the appellants made export of their final product in discharge of export obligation in relation to the raw materials imported by them, they had availed Modvat credit on the inputs used in the manufacture of such export goods. In other words, if there was breach of condition-V of the Notification, which made the Revenue demand duty of customs on the raw mater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication of Modvat credit on inputs to be reversed by the exporters of the above category. It appears that this Public Notice was issued on the heels of Circular No. 285/1/97-CX., dated 10-1-1997 issued by the Ministry of Finance (Department of Revenue), Govt. of India. The Ministry's Circular and the Commissioner's Public Notice laid down the following formula : A = B x C D + B Where, A - Modvat credit to be reversed. B - Total value of exports under VABAL during the financial year, as declared in AR 4 (See 4 value). C - Total credit availed in RG-23A during the financial year on all inputs. D - Total value of goods cleared for home consumption during the financial year arrived at under Section 4. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Act. Meanwhile, there was a Public Notice issued by the Commissioner of Customs & Central Excise, Vadodara viz. Public Notice No. 3/97 dated 28-1-97, wherein also it had been clarified that the exporters could reverse the actual credit availed by them provided they were in a position to substantiate the same on the basis of the available records subject to satisfaction of the jurisdictional Assistant Commissioner of Central Excise. The appellants chose to go by this Public Notice and, accordingly, quantified the actual input duty credit to be reversed within 31-1-97 so as to claim the benefit of 'amnesty' announced by the Central Government. Apparently, it was on this basis that they effected the reversal of credit. 3. However ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellate Commissioner's order. 4. The ld. advocate for the appellants relied on the decision in their own case at Nashik factory wherein this Tribunal in 2009 (246) E.L.T. 436 (Tri-Mumbai) had remanded back to the adjudicating authority to pass fresh speaking order of adjudication of refund claim filed by the appellant. Hence same treatment be given to this case. 5 On the other hand, ld. DR submitted that appellants have filed a writ petition before the Hon'ble Delhi High Court challenging the formula of reversal of credit as per Circular No. 285/1/97-C.E., dated 10-1-1997 and same is pending before the Hon'ble High Court and in the interim order passed by the Hon'ble High Court in writ petition, Hon'ble High Court have ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on actual basis up to 31-1-1997 should be reckoned for purpose of amnesty declared in the circular dated 4-1-97. The Board circular dated 26-6-1997 has clarified with respect to the exporter like the appellants and expressly recognised "reversal on actual cost" as an alternative. As per Board Circular No. 318/97-C.E., dated 26-6-1997, it has been clarified that in the case where the credit is reversed on actual basis, such certificate should be issued only after verification of the records of the exporter by a cost accountant nominated under Section 14A of the Central Excise Act, 1944. In the light of the above finding, observe that the report of cost accountant submitted by the appellants has been rejected by the adjudicating authority wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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