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TMI Blog2008 (2) TMI 369X X X X Extracts X X X X X X X X Extracts X X X X ..... captive consumption of inputs can be availed by the assessee when it has fulfilled the conditions of payment of Excise Duty under S. 3A of the Central Excise Act when the goods were removed from the re-rolling Mill manufacturing inputs to forging factory under an invoice by making payment of the invoice price by a cheque in separate account though both the factories are owned by the same person?" 2. The question is said to be arising, on account of interpretation of Notification No. 58/97 CE, which reads as under:- "Iron and steel - Goods notified for purposes of credit of duty under Modvat - In exercise of the powers conferred by sub-rule (6) of rule 57A of the Central Excise Rules, 1944, the Central Government hereby declares the follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roducts cleared for home consumption or for export, on payment of duty and where for any reason such adjustment is not possible by refund to the manufacturer subject to such safeguards, conditions and limitations as may be specified by the Central Government in the Official Gazette. Provided further that no such refund of credit of deemed duty shall be allowed if the manufacturer avails of drawback allowed under the Customs and Central Excise Duties (Drawback) Rules 1971, or claims rebate of duty under rule 12 in respect of such duty. 4. The provisions of this notification shall apply to only those inputs which have been received directly by the manufacturer of the final products from the factory of the manufacturer of the said inputs und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he input, available under the Notification No. 58/97, was sought to be denied by the Department, on the ground, that they did not fulfil the conditions, subject to which the benefit of deemed modvant credit was available, under the said notification. Thereupon the controversy arose, and the two authorities below found the assessee to be not entitled to the credit, while the learned Tribunal set aside those orders, and found that the benefit of modvat credit could not be denied to the assessee, solely on the ground, that the duty paid inputs were captively used in manufacture of dutiable final products. It was not disputed that the price as declared by SIL in their invoices issued for captive consumption was the same as was declared in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be undertaken in the manner, strictly as provided by the explanation, comprised in the said notification, and unless all the conditions co-exist, the assessee cannot be said to be entitled to modvat credit. 7. We have considered the submissions, and find ourself unable to agree with the submissions. 8. The learned Tribunal has discussed the matter thread bare, and has drawn distinction between the two types of the requirements; one being substantive, and the other being procedural, and after duly bifurcating them, from out of the notification, has found that substantive requirements are properly complied with, and even without finding as to what procedural requirement was lacking, it has been observed, that procedural requirements nee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r by bankers' cheque. In our view, the explanation has the effect of only describing the meaning of invoice price, and it cannot be interpreted to mean to be having any effect, on the aspect, as to whether the modvat credit would be available to purchaser of input, who has purchased it as duly excise duty paid inputs, which are accompanied with the requisite documents. 10. It has already been considered by the learned Tribunal, that this notification No. 58/97 has not been issued under Section 3A of the Act, but has been issued under Sub-rule (6) of Rule 57A. 11. Yet another aspect of the matter is, that all said and done, the object of providing modvat credit is to avoid double taxation by way of excise duty on the same thing. Here ..... X X X X Extracts X X X X X X X X Extracts X X X X
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