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TMI Blog2014 (2) TMI 447X X X X Extracts X X X X X X X X Extracts X X X X ..... ere possibility that the other grades may be used for manufacture of the final product is not sufficient for the purposes of Clause (i) of sub-rule (3) of Rule 57F. Therefore, the Collector and more specifically CEGAT were right in taking the view that the PU of other grades was never intended to be used - In the circumstances, the order of the appellate authority cannot be faulted with. As far as penalty is concerned, the same has been reduced to 1/4th by the Appellate Authority - Decided partly in favour of assessee. - Writ Petition No. 1088 of 1995 - - - Dated:- 9-5-2012 - A. S. Oka and Shrihari P. Davare, JJ. Shri V.P. Sawant, Advocate, for the Petitioner. Shri S.S. Pakale with Avinash Belge, Advocates, for the Respondent. JUDGMENT Heard learned counsel for the parties. 2. By this writ petition under Article 226 of the Constitution of India, the petitioner has taken an exception to the Order-in-Original dated 18th June, 1993 passed by the Collector of Central Excise and Customs as well as the order dated 19th October, 1994 passed by the Customs, Excise and Gold (Control) Appellate Tribunal (for short CEGAT). With a view to appreciate the submissions made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also called upon as to why the Petitioner should not be called upon to deposit a sum of Rs. 25,87,588.90 being the credit taken and utilized during the said period in respect of input of PU Resins other than Grade 5702 under Rule 57-I of the said Rules of 1944. Thus, the show cause notice related to total amount of Rs. 39,54,355.25. The notice also called upon the petitioner to show cause as to why penalty should not be imposed under Rule 173Q of the said Rules of 1944. The petitioner replied to the show cause notice by its Advocate s reply dated 5th February, 1993. The Collector passed Order-in-Original dated 18th June, 1993 by which he directed the petitioner to pay duty demand amount of Rs. 39,54,350.25 as per the break up given in the said order. The Collector imposed penalty of Rs. 20,00,000/- under Rule 173Q of the said Rules. In the appeal preferred by the petitioner, by judgment and order dated 19th October, 1994, the demand of sum of Rs. 8,09,583.55 was set aside. As far as the demand of Rs. 5,57,177.80 is concerned, the matter was remanded for fresh decision in the light of observations made in the said judgment. However, the demand made in the sum of Rs. 25,87,588-90 on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of Bharat Bijlee Ltd. v. Union of India reported at 2003 (154) E.L.T. 564 (Bom.) which holds that denial of credit on the ground that declaration did not give specific description of the inputs was held to be improper as no format has been prescribed for declarations. He relied upon certain decisions of the Tribunal with a view to persuade the Court to take a view that the recovery ordered is illegal. The learned counsel appearing for the Respondent Nos. 1 and 2 supported the impugned judgment and orders. 6. We have carefully considered the submissions. It will be necessary to make a reference to the declaration filed under Rule 57G for availing credit on duty on inputs. In the said declaration against the final product of LBSP, following inputs have been mentioned :- (1) PVC Resin (in different names, grades and numbers). (2) Thermo Plastic Polyurethane Resin (in different names, grades and numbers). (3) Kondicryl Resin (in different names, grades and numbers). (4) Stabiplast XK-16/14. (5) Mathyl Ethyl Kotong (M.K.). (6) Polues. 7. In this petition, we are concerned with the recovery of Rs. 25,87,588.90. It will be necessary to make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of PU Resin other than Grade 5702 was not made, but it was pleaded by the petitioner that other grades could be used ajnd the petitioner intended to use the same in manufacture of LBSP. The case of the petitioner noted by the CEGAT is that actual use need not be made as the petitioner was conducting various experiments. It was submitted that the Department has not contended that PU Resin of other grades cannot be used and, therefore, intention to use the same was established. 10. On this aspect, it will be necessary to make a reference to the statements of various officers of the petitioner, the copies of which have been placed on record. In the statement of Shri V.R. Honatti, he has stated that for LBSP, the petitioner was exclusively using PU Resin Grade 5702 and PU Resins of the Grades at Sr. Nos. 543, 544 and 545 are not being used as inputs. There is similar statement of Shri S.D. Ovalekar, Vice President (Operations). 11. At this stage, it will be necessary to make a reference to the relevant Rule and in particular Rule 57F. Sub-rule (3) of Rule 57F provides that credit of specified duty allowed in respect of any inputs may be utilized towards payment of duty of excise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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