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TMI Blog2007 (11) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... ailing Orders Annexure 'C', 'D', 'E' and 'F' passed by the respondents. Although the petition is captioned, as a petition under Article 226/227 of the Constitution of India, in fact it is purely a petition under Article 227 of the Constitution of India in view of the nature of the claim laid in the petition 2. Necessary and relevant facts for our purpose are that petitioner holds registration under Rule 174 of the Central Excise Rules, 1944. It is engaged in manufacture of PCC Poles falling under CH-68 of the Central Excise Tariff Act, 1985. Petitioner availed MODVAT Credit in terms of Rule 57A of the Rules in respect of input (Cement) used in the manufacture of PCC Poles. During the scrutiny of RT 12 returns, along with input invoices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal was preferred to the 'Customs, Excise Gold (Control) Appellate Tribunal'. Said appeal was partly allowed by the Tribunal vide Order dated 9-12-1999 [ (118) E.L.T. 448 (Tribunal)], Annexure B, so as to set aside the levy of interest on the duty amount but the Tribunal confirmed the duty demand of Rs.78,830 together with the penalty of Rs.4000/-. Thereafter, an application for rectification was filed which was rejected by the Tribunal vide Annexure-F holding that there was no error apparent either on the face of record or the order dated 9-12-1999. Hence present writ petition under .Article 227 as stated above. 4. Learned Counsel for the petitioner emphatically argued that firstly there was no breach so as to deny the MODVAT cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al hearing, it will not be proper at this stage to throw it out on the ground of alternative remedy. In this view of the matter, it is difficult to accept the contention of the learned Counsel for the respondents to dismiss the writ petition on the ground of alternative remedy at this distant point of time 7. Now coming to the merits of the case, it may be observed that MODVAT is basically a duty-collecting procedure which provides relief to the manufacturer on the duty element borne by him in respect of the inputs used by him. The relief is given under the MODVAT Scheme on the actual payment of duty on the input. On such payment, the assessee gets a right to claim adjustment /set-off against the duty on the final product. Under MODVAT, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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