9911796707
TMI Blog2013 (9) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... extending the benefit, he has relied upon the Tribunal's decision in the case of Commissioner of Central Excise, Hyderabad v. Aurobindo Pharma Ltd. - 2001 (127) E.L.T. 786 as also on another decision of the Tribunal in the case of Commissioner of Central Excise v. Crest Cables Limited - 2002 (50) RLT 704 (T). 2. It is seen that the Revenue's appeal was earlier rejected by the Tribunal vide Final Order No. 1602/2009, dated 5-11-2009. However, the said order was recalled on a ROM application filed by the Revenue on the ground that Hon'ble Supreme Court's decision in the case of Osram Surya (P) Ltd. v. Commissioner of Central Excise - 2002 (142) E.L.T. 5 (S.C.) was not considered. That is how the appeal stands listed before us for fresh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of proviso to Rule 57G, a manufacturer can take the credit after six months from the date of issuance of duty paying documents specified in the first proviso to Rule 57G of the Rules in respect of inputs received prior to the said date. The said issue was answered by the Hon'ble Supreme Court against the assessee. He clarifies that the issue as to whether once the inputs has been received and stands reflected in RG-23A Part I, within a period of six months, whether credit can be disallowed on the ground that entry in RG-23A Part II was made subsequently, was not the subject matter of consideration before the Hon'ble Supreme Court. He also draws our attention to the Tribunal's order in the case of Osram Surya and submits that the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issions made by both the sides. As per the admitted facts on record, the inputs were received by the respondents on various dates during the period May to Sept.'99. The said inputs were duly entered by the respondents in their RG-23A Part I register. There is also no dispute about the fact that the said inputs were duly covered by the invoices reflecting payment of duty in respect of the same. As such, the respondents were admittedly entitled to the benefit of MODVAT credit in respect of the inputs so received by him, entered by him in RG-23A Part I and ultimately used by him in the manufacture of the final product, cleared on payment of duty. As per the appellants, though they were entitled to avail the credit immediately and make entries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dit. On going through the order proposed by Member (Judicial), Member (Technical) agreed with the same and credit was held to be admissible. 8. At this stage, we take note of the Tribunal's decision in the case of Osram Surya (P) Ltd., which according to the Revenue, stands confirmed by the Hon'ble Supreme Court. On going through the Tribunal's decision, we find that there is no discussion on the issue i.e., when the entries stand made in RG-23A Part I within a period of six months, the availment of credit after six months period is permissible or not. From para 4 of the said decision, we find that the only issue decided was that the credit taken by the appellants in the month of Sept.'95 was beyond the period of six months and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein. The cumulative effect of the reading of the two sub-rules of Rule 57G make it clear that credit is available for taking in respect of inputs which stand received by an assessee. As such, a manufacturer becomes entitled to take credit immediately on receipt of the inputs without any further formality. The amount of credit is to be simplicitor written in the records. Further, the provisions of sub-rule (7) of Rule 57G require a manufacturer to maintain an account in form RG- 23A, Part I and Part II. We note that the register required to be maintained by an assessee is in Form RG-23A. The same further has two parts i.e., Part I and Part II. Admittedly, the respondents have made entries of inputs in RG-23A Part I and in terms of sub-rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han six months. The credit will not become deniable to the assessee on the said count, though the period of six months might have been passed by that time. At this stage, we also take note of the proviso to sub-rule (10) of Rule 57G, which empowers the Assistant Commissioner to condone the delay in filing the declaration. However, clause (i) of sub-rule 10 is to the effect that Assistant Commissioner will not condone the delay if the inputs are received in the factory prior to the period of six months. This means that he can condone the delay in filing the declaration in respect of the inputs received upto a period of six months back from the date of the condonation application. Such condonation is likely to take some time in the hands of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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