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TMI Blog2000 (5) TMI 1079X X X X Extracts X X X X X X X X Extracts X X X X ..... cheme, as per Rule 57K of the Central Excise Rules, 1944 (hereinafter referred to as the rules ), at the time of rescinding of the Notification No. 27/87 as well as the credit available to them under Notification dated 11th October, 1989, issued by the Central Government under Rule 57K of the Rules. The Assistant Collector disposed of the said Reference by his order dated 9-10-1991, holding that the assessee-appellant is entitled to appropriate the credit available to him on the date of recession of the Notification of 1987, which stood rescinded on 25th of August, 1989 as well as the credit which gets accumulated, pursuant to Notification dated 11th of October, 1989, but not entitled to utilise the credit available under both the Notifications simultaneously and, therefore, the credit would be utilised for payment of duty on the manufactured product, which should not exceed Rupees one thousand per M.T. It is because of this order, the appellant filed the writ petition in the High Court of Andhra Pradesh to stay the recovery of excise duty contemplated under Notice dated 14-10-1998 issued by the Superintendent of Central Excise, Kurnool. The identical question raised by the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 16-12-1988. Set-off of duty on use of specified minor oils in the manufacture of vegetable products. In exercise of the power conferred by Rule 57K of the Central Excise Rules, 1944, the Central Government hereby specifies :- (i) the inputs, namely, fixed vegetable oils of the description in column (2) of the Table hereto annexed and used in the manufacture of the final products, namely, vegetable products falling under sub-heading No. 1504.000 of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986); and (ii) the rates in the corresponding entry in column (3) of the said Table as the rate at which credit may be granted for use of such inputs in the manufacture of the said final products, for the purpose of Section AAA of Chapter V of the said rules and stipulates that the grant of credit and utilisation thereof shall in addition to the provisions of the said Section, be subject to the following conditions, namely :- (i) the credit shall be taken only in respect of the quantity of oil subjected to hydrogenation on or after the 1st day of March, 1987 for the manufacture of the said final products and the credit shall be taken only on the date on which the oil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l ₹ 4000 05. Solvent extracted mustard oil ₹ 3250 06. Solvent extracted rape seed oil ₹ 3250 07. Solvent extracted sunflower oil ₹ 3250 08. Solvent extracted Safflower oil ₹ 3250 09. Palm Oil ₹ 3250 Explanation. In this notification, Vegetable products means any vegetable oils or for which, whether by itself or in admixture with any other substance, has by hydrogenation or by any other process, been hardened for human consumption. This notification stood rescinded by the subsequent Notification dated 25th of August, 1989. Shortly, thereafter, a fresh notification was issued on 11th of October, 1989 by the Central Government in exercise of the same power conferred under Rule 57K of the Rules, providing the credit in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h extended period as the Assistant Collector of Central Excise may allow in this behalf, produce a certificate from an officer not below the rank of Deputy Director in the Directorate of Vanaspati, Vegetable oils and Fats in the Ministry of Food and Civil Supplies of the Government of India to the effect that the said oil has been manufactured by the solvent extraction method; and (v) the credit shall be taken only in respect of indigenous inputs and the manufacturer shall produce such documents as may be required by the Assistant Collector of Central Excise in this regard; Provided that in the case of Palm Oil used as input the manufacturer shall within five months from the date of taking credit, or within such extended period as the Assistant Collector of Central Excise will allow in this behalf, produce a certificate from an officer not below the rank of Deputy Director in the Directorate of Vanaspati, Vegetable Oils and Fats in the Ministry of Food and Civil Supplies of the Government of India to the effect that the said oil has been of indigenous original. TABLE S. No. Fixed Vegetable Oils Rate of credit per tonne of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eliance was placed on the decision of the Gujarat High Court in the case of Dipak Vegetable Oil Industries Ltd. v. Union of India, 1991 (52) E.L.T. 222 (Guj.) as well as the decision of Andhra Pradesh High Court in the case of Agarwal Industries Ltd v. Union of India, 1992 (57) E.L.T. 561 (A.P.). The learned Counsel also contended that against the decision of the Gujarat High Court an SLP has been filed in this Court, when SLP stood dismissed and such dismissal tantamounts to confirmation of the view taken by the Gujarat High Court by this Court. The said order of dismissal has been reported in 1998 (100) E.L.T. Page A-175. Mr. Dave also contended that under the Modvat Scheme, a rule had been introduced to Rule 57F, which is read as Rule 57F(4A), which rule stipulated that any credit of specified duty lying unutilized on 16th of March, 1995 with a manufacturer of tractor, would lapse and shall not be allowed to be utilised for payment of duty of any excisable goods and this Court in the case of Eicher Motors Ltd. v. Union of India, 1999 (106) E.L.T. 3 (S.C.), came to the conclusion that a right which had been accrued to a party under any available scheme cannot be affected by any s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scheme itself and the notification issued as well as the ratio of the decisions of these High Courts on which the counsel for the appellant placed reliance. 7. Chapter AAA of the Rules contains provisions, providing for credit of money in respect of certain raw materials used in the manufacture of certain excisable goods. Rule 57K(1) itself stipulates accumulation of credit of money for use of inputs in the manufacture of final products can be availed of only, when a notification is issued by the Central Government and that notification itself would provide the rates at which credit could be accumulated and also allowing such credit to be utilised for payment of duty on the final products and this must be subject to the conditions, if any, stipulated in the very notification itself. In the aforesaid scheme of the provision, the notification issued by the Central Government in exercise of powers conferred under Rule 57K, plays an important role. If the notification that had been issued in the year 1987 is examined, it would appear that paragraph (iii) unequivocally, provides that the amount of credit utilised for payment of duty shall not exceed ₹ 1000/- per tonne of veget ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility and extent of credit and Rule 57N, dealing with the manner of utilisation of credit, came to the conclusion that the credits already accrued and acquired on the basis of the notification issued by the Central Government in the year 1987 in exercise of powers under Rule 57K, the same cannot be taken away by rescinding the notification in question and the effect of the rescinding notification is from the date of the said notification, the manufacturer would cease to earn the benefit of credit of money, but not deprived of the right to utilise the credit of money which they have already earned validly and could be used for payment of excise duty and the excise authorities were in error. In the penultimate paragraph of the said judgment, the Court has observed that the benefits in question will be in addition to the benefits which have again been made available to them under Notification No. 45/89 and 46/89 dated 11th of October, 1989 and it is this observation on which Mr. Dave, the learned Counsel for the appellant strongly relied upon for his contention that it tantamounts to a conclusion that the benefit earned under both the notifications can be availed of simultaneously. We ..... X X X X Extracts X X X X X X X X Extracts X X X X
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