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TMI Blog2011 (2) TMI 575X X X X Extracts X X X X X X X X Extracts X X X X ..... vires provisions of Constitution of India; (C) YOUR LORDSHIPS may be pleased to issue a writ of Mandamus and/or a writ in the nature of Mandamus or any other writ or Direction quashing and setting aside Order-in-Original No. 75 to 76/D/2000 dated 30-3-2000 passed by the 3rd respondent." 2. The petitioner No. 1 herein is a Company registered under the Companies Act, 1956 and is engaged in the manufacture of Plastic and Articles thereof falling under Chapter 39 and Printed Labels of paper falling under Chapter Sub-Heading 4821.00 of the Tariff Act. The goods falling under Chapter 39 are liable to duty whereas the Printed Labels carry Nil rate of duty. For the manufacture of goods falling under Chapter 39, the petitioners have been using various plastic materials and printing inks. For the manufacture of Printed Labels, the petitioners are using printing inks, paper and Bi-axially Oriented Poly Propylene (BOPP) as raw materials. In 1986, the Government of India introduced a scheme known as MODVAT scheme so as to reduce the cascading effect of taxation. The Scheme provided for credit of duty paid on raw materials used in or in relation to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rule 57CC of the Central Excise Rules, 1944. 4. The learned advocate for the petitioners invited the attention of the Court to the relevant provisions of the Rules as well as to a decision of the Apex Court in the case of Chandrapur Magnet Wires (P) Ltd. v. Collector of C. Excise, Nagpur, 1996 (81) E.L.T. 3 (S.C.), a decision of this High Court in the case of CCE, Ahmedabad-II v. Maize Products, 2008 (89) RLT 211 (Guj.) = 2009 (234) E.L.T. 431 (Guj.), as well as a decision of the Allahabad High Court in Hello Minerals Water (P) Ltd. v. Union of India, 2004 (174) E.L.T. 422 (All). However, for the reasons that follow, it is not necessary to refer to the other contentions as well as the above referred decisions in detail. 5. The learned advocate invited attention to the provisions of Section 69 of the Finance Act, 2010 to submit that from the amendment in the statutory scheme, it is apparent that the view taken by this High Court in the case of CCE, Ahmedabad-II v. Maize Products [supra] has found approval in the legislative scheme. It was further submitted that since the petitioners have already reversed the amount of credit taken in respect of the common input used in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods) of the second category of final products charged by the manufacturer for the sale of goods at the time of clearance from their factory by adjustment in the credit account maintained under sub-rule (3) of Rule 57G or in the accounts maintained under Rule 9 of sub-rule (1) of Rule 173G or if such adjustment is not possible for any reason, by cash recovery from the manufacturer availing of the credit under Rule 57A. Sub-rule (2) thereof provided that in respect of inputs (other than inputs used as fuel) which are used in or in relation to the manufacture of any goods, which are exempt from the whole of the duty of excise leviable thereon or chargeable to nil rate of duty, the manufacturer shall maintain separate inventory and accounts of the receipt and use the inputs for the aforesaid purpose and does not take credit of the specified duty on such inputs. 9. In the present case, since it was not possible to maintain separate accounts in respect of the common input viz., ink in terms of sub-rule (2) of Rule 57CC the petitioners had initially taken credit of the specified duty on such inputs. However, whenever they utilised ink in the manufacture of printed labels, they debit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 31st day of March, 2000, relating to the provisions as amended by subsection (1), shall be deemed to be and deemed always to have been, for all purposes, as validly and effectively taken or done as if the amendment made by sub-section (1) had been in force at all material times. (5) Notwithstanding the supersession of the Central Excise Rules, 1944, for the purposes of sub-section (1), the Central Government shall have and shall be deemed to have the power to make rules with retrospective effect as if the Central Government had the power to make rules under section 37 of the Central Excise Act, retrospectively, at all material times. Explanation.- For the removal of doubts, it is hereby declared that no act or omission on the part of any person shall be punishable as an offence which would not have been so punishable had this section not come into force." 11. The newly inserted Rule 57CCC of the Central Excise Rules, 1944 reads thus : THE FOURTH SCHEDULE [See section 69(1)] Sl. No. Provisions of Central Excise Rules, 1944 to be amended Amendment Period of effect of amendment (1) (2) (3) (4) 1. Insertion of new rule 57CCC. In the Central Excise Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... butable to inputs used in, or in relation to the manufacture of, such final products which are not chargeable to duty, before or after the clearance of such goods : Provided that the manufacturer shall pay an interest at the rate of twenty-four per cent, per annum from the date of clearance of goods till the date of payment of the said amount." 1st day of March, 1997 to 31st day of March, 2000 (both days inclusive 12. Thus, vide sub-section (1) of the said section a new rule, viz., Rule 57CCC has been introduced in the Central Excise Rules, 1944 with retrospective effect and vide sub-section (2) thereof it has been provided that where a person opts to pay the amount in accordance with the provisions of Central Excise Rules, 1944 as amended by sub-section (1), he shall pay the amount along with interest specified thereunder and make an application to the Commissioner of Central Excise along with documentary evidence and a certificate from a Chartered Accountant or a Cost Accountant certifying the amount of input credit attributable to the inputs used in or in relation to the manufacture of final products which are exempted from the whole of the duty of excise leviable thereo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down therein within a period of six months from the date on which the Finance Bill, 2010 receives the assent of the President. 15. Examining the facts of the present case in the light of the newly amended statutory scheme, in the present case the petitioners were bona fide prosecuting theremedy before this Court, hence, pending the petition they have not made any application as contemplated under sub-section (2) of Section 69 of the said Act. It is the case of the petitioners that they are not required to make any such application since they have already reversed the amount of credit taken in respect of the common input used in the manufacture of product carrying nil rate of duty. However, in the light of the amended provisions of the Central Excise Rules, 1944 it is not necessary to consider the rival contentions on merits since the amended provisions take care of a situation like the present one. 16. In view of the above discussion, keeping in view the amended provisions of the Central Excise Rules, 1944 as amended by Section 69 of the Finance Act, 2010, the petition is required to be allowed in the following terms : (i) The impugned or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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