9911796707
TMI Blog2010 (10) TMI 1007X X X X Extracts X X X X X X X X Extracts X X X X ..... for the year 2000-2001, appeal filed by the department before this Tribunal was rejected by the order of the Tribunal dated 28-10-2004 as reported in 2004 (178) E.L.T. 1060. Appeal filed by the department before the Hon ble High Court of Gujarat was rejected vide order dated 12-1-2006 [2008 (225) E.L.T. 39 (Guj.)]. Thereafter the department filed SLP before the Hon ble Supreme Court [2007 (212) E.L.T. 7 (S.C.)]. When the SLP was pending, the admissibility of credit of the balance of 50% of the duty in April 2001 came up for consideration and once again the original adjudicating authority and Commissioner (Appeals) allowed that balance credit of 50% and the appeal filed by the Revenue before the Tribunal was also rejected vide the Tribunal order No. A/1215/WZB/AHD/2007 dated 23-5-2007 [2007 (214) E.L.T. 226 (Tri.)]. 2. However the Hon ble Supreme Court had already decided the SLP filed by the department in favour of the department vide order dated 10-5-2007 and this was not brought to the notice of the Tribunal when the order dated 23-5-2007 was passed. However against the order of the Tribunal dated 23-5-2007, Revenue filed tax appeal and Hon ble Gujarat High Court vide their d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ximum of one lakh rupees in the financial year 2000-2001, and the balance in subsequent years. 4. The issue before me is what is the amount of credit available to the appellant in the second year namely 2001-2002. The Tribunal had originally decided that SCL would be eligible for 50% of the balance of Cenvat credit on the capital goods received by them. 5. Heard both the sides. 6. The learned DR on behalf of the Revenue submitted that the SLP was filed by the department against the decision of the Tribunal that appellant was eligible for 50% of the credit in the first year as against the stand of the department that the total credit admissible was only 75% and therefore appellant could have taken only 37 % in the first year and the balance 37 % in the next year. In view of the fact that Hon ble Supreme Court has allowed the appeal filed by the department, it has to be held that appellant would be eligible only for 37 % in the second year. He also submitted that percentage of credit admissible in the first year is not the issue before me. 7. On the other hand learned advocate on behalf of SCL submitted that after receipt of the decision of the Hon ble Supreme Court the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, ought to be clarified. It seems that this Hon ble Court was unduly influenced by the finding of the High Court holding that the petitioner can avail the balance Cenvat credit of 50% in the subsequent year, which this Hon ble Court in the present impugned judgment has held not to be correct in so opining. It is submitted that the said finding of the High Court was a mere obiter as there was no occasion to render such a finding as the entire dispute arising out of the show cause notice was confined merely to the issue of entitlement of Cenvat credit to the extent of 50% in the first year and was in no manner concerned with the subsequent year. It is, therefore, further submitted that there was no need to go into the said aspect of the interpretation of 57AC(2)(c) as the same was merely academic apart from being beyond the scope of the show cause notice itself. That it is submitted that as a result of allowing of the present appeal, this Hon ble Court has ineffect upheld the show cause notice and thereby the contention of the department that the relevant rule is Rule 57Q(3) and not Rule 57AC(2)(c). This has clearly resulted in ambiguity in the present judgment and or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned extent. 9. On the one hand learned DR submitted that the very fact that the Hon ble Supreme Court used the word appellant and observed that appellant have been granted relief shows that the decision of the Hon ble Supreme Court does not give any relief to SCL. In this case appellant before Apex Court was Revenue. He drew my attention to the observations of the Hon ble Supreme Court in para 10 of the order dated 10-5-2007 where it was observed we, therefore, are of the opinion that the High Court was not correct in opining that Cenvat credit to the extent of 100% could be allowed in terms of Rule 57AC of the Rules . Hon ble Supreme Court also further observed after taking note of the submissions of the learned counsel for the respondent that while granting relief to the extent of 50% in the relevant year, it purports to hold that the credit of balance 50% can be availed in the subsequent years. It was also observed that the Commissioner in arriving at the said finding did not notice the definition between clause (a) and clause (b) of sub-rule (2) of Rule 57AC on the one hand and clause (c) thereof on the other. It was also observed that an illustration cannot contro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the order of the High Court holding that SCL was eligible for 50% in 2000-2001 and 50% in the next year was wrong. The sum and substance of the decision of the Hon ble Supreme Court dated 10-5-2007 and the clarification issued by the Hon ble Supreme Court on an application made by SCL in my opinion is that the total credit available to SCL is 75% of the total duty paid only. Rule 57AC(2)(c) provides that an assessee can take credit not exceeding 50% in the first year and the balance in subsequent years. The total credit available would be the one which is applicable on the date of receipt which is 75%. I am not in a position to exactly specify as to the amount of credit admissible to SCL in the year 2001-2002 since the amount of credit admissible in the first year is again subject to the interpretation of the decision of the Hon ble Supreme Court by the lower authorities. Therefore the issue is decided by holding that the total credit admissible is 75% and the credit admissible for 2001-2002 would be the balance available after deducting the credit taken in the first year. The matter is remanded to the original adjudicating authority to decide the correct amount admissible as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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