9911796707
TMI Blog2016 (12) TMI 837X X X X Extracts X X X X X X X X Extracts X X X X ..... t in bulk packing of 50 kgs. on payment of duty to their distributor i.e. M/s Vardhaman Chemicals Ltd., who would convert the same into retail packaging. However, due to low demand in market, the production was stopped in July 1993. In 1996, realizing that the existing stock with M/s Vardhman Chemicals Ltd. would have undergone deteriotion, appellant decided to undertake reprocessing and also marketing of the product. Guidance was sought from the Central Excise Officers during February 1996 and the appellant sought permission to avail credit of the duty paid on clearance of bulk goods against the original duty paying documents. Appellant was granted permission under Rule 173H to bring back the goods, repack and clear the same on payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the grounds that: (i) No modvat credit shall be admissible on the bulk goods brought in the factory in view of the second proviso to Rule 57-G inserted vide Notification No. 28/95-CE dated 29.06.2005 and the gate pass not being the specified document under Rule 57-G; (ii) The refund claim filed for the duty paid subsequently, is time barred, as the same was filed on 04.01.1999 and the last consignment was received on 29.03.1998; (iii) The appellant has not submitted any proof regarding their refund claim not being hit by bar of unjust enrichment. 4. Appellant filed detailed replies to the aforesaid SCN, stating that denial of modvat credit as a condition for bringing back goods is illegal. Further, in respect of the refund claim, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be entitled to the credit of the duty originally paid on the defective goods on the strength of the gate passes alongwith the accompanied challans. They have further submitted that the credit cannot be denied on the basis of the 2nd proviso to Rule 57G since such proviso itself has been struck down as ultra virus by the Hon'ble Gujarat High Court in the case of Baroda Rayon Corporation Ltd. vs. Union of India 2014 (306) ELT 551 (Guj.). They have also relied upon the decision of the Hon'ble Supreme Court in Osram Surya (P) Ltd. vs. CCE 2002 (142) ELT 5 (SC) in which it has been held that such conditions prescribed in Rule 57G will be applicable prospectively. 8. In the alternative the appellant has claimed that they will be entitled to ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im of the appellant for allowing modvat credit of the duty paid at the time of original clearance on the strength of the gate passes under which these goods were cleared from the factory. Modvat credit under the erstwhile rule, was admissible for goods which are in the nature of inputs as well as capital goods. The defective goods brought back into the factory cannot be categorized under either of the two categories; consequently, the claim of modvat credit has to be disallowed as has been rightly done by the authority below. A lot of arguments have been raised by the appellant regarding the 2nd proviso to Rule 57G which allows modvat credit to be taken only within a period of six months from the date of the gate pass. However, we find that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom this date i.e. 29.09.1998. It is on record that the refund claim stands filed on 04.01.1999 which is clearly time barred. The appellant has also claimed that the refund claim was originally filed with the jurisdictional Assistant Commissioner on 30.12.1998 which was returned for making good certain deficiencies. Even if this date is taken, the claim is hopelessly time barred. The other argument advanced by the appellant is that the delay in filing of the refund claim was on account of the delay in procuring certificates from various jurisdictional Central Excise authorities to the effect that no modvat credit has been availed on the defective goods originally cleared and subsequently returned. The time limit prescribed under Section 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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