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TMI Blog1992 (1) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... the parties, the Assistant Collector has rejected the refund claim as per his order dated April 30, 1991, produced at Annexure F to the petition. The petitioner has challenged the legality and validity of the aforesaid order. In substance the petitioner has prayed for quashing and setting aside the aforesaid order and also prayed for direction commanding the respondents to permit the petitioner to take and utilise the short taken credit under Notification No. 27/87 dated March 1,1987. 2. The petitioner company is engaged in the manufacture of vegetable oil. The Government introduced money credit benefit scheme by introducing Section AAA and inserted Rules 57K to 57P in the Central Excise Rules with effect from March 1,1987. Rule 57K empowers the Government to issue notification permitting the money credit to be taken by the manufacturer if the manufacturer uses certain raw materials in the manufacture of final products. The said money credit benefit would be available to manufacturers subject to the provisions of Rules 57K to 57P contained in Section AAA and the conditions if any that may be mentioned in the relevant notification. Under this provision, the Government issued Notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner did not avail of the credit for the gross quantity which was put into the process of hydrogenation. According to the petitioner it availed of the money credit in respect of the raw oils after deduction of the process loss. But, the petitioner availed of money credit even in respect of the quantity of raw-oils which was lost during the process from October 1989 onwards. In this fashion the petitioner availed of credit for Rs. 11,24,024.50 ps. for the period commencing from October 1989 to September 1990. The Superintendent Central Excise, Bhavnagar issued three different show cause notices dated January 25, 1990, May 21, 1990 and October 5, 1990 and the petitioner was called upon to show cause as to why the demand should not be confirmed under Sec. 11A of the Central Excises & Salt Act, 1944. The Assistant Collector, Central Excise, Bhavnagar after hearing the petitioner came to the conclusion that having regard to the conditions mentioned in the notification and having regard to the provisions of Rule 57F of the Central Excise Rules, 1944, all the three show cause notices were required to be dropped and withdrawn. This order was passed on December 31,1990. 5. The petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. In view of the decision of the Supreme Court in the case of Collector of Central Excise, Chandigarh v. Doaba Co-operative Sugar Mills, reported in 1988 (37) E.L.T. 478, the Excise Officers performing duties under the provisions of the Act are bound by the provisions of the Act. In this decision the Supreme Court has referred to its earlier decision in the case of Miles India Ltd. v. The Assistant Collector of Customs, reported in 1987 (30) E.L.T. 641. The Officers exercising powers under the provisions of the Act and the Rules framed thereunder cannot ignore the provisions of the Act and the Rules. They are the creatures of the statute. They are bound by the provisions of the statute. It may also be noted that in case of short levy, short payment, or non-levy or no-payment, or erroneous refund of excise duty also the Department cannot make recovery of the amount of excise duty beyond the prescribed period of limitation. In the case of Doaba Co-operative Sugar Mills (supra), the Department sought to recover duty after the prescribed period of limitation. In that connection the Supreme Court inter alia observed as follows : "In making claims for refund before the departmental a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken by an assessee there is no specific provision enabling the assessee to claim the differential credit subsequently. But having regard to the overall scheme of the Act and the Rules it would be proper to hold that if the assessee is eligible to avail of the credit and for whatever reason he has taken short-credit, then if the assessee claims the differential credit subsequently and if he proves his eligibility then he may be entitled to claim the same, provided he claims the same within the period of limitation and provided further that he satisfies all the relevant conditions. By necessary implication the limitation period of six months as provided under Section 11B of the Act has got to be read as limitation prescribed for claiming such differential credit. We are told that such is the view taken by CEGAT also in the case of Collector of Central Excise v. Mysore Lac & Paint Works Ltd., reported in 1991 (52) E.L.T. 590. If that be so, we believe that the view taken by CEGAT is just and proper and is in accordance with the general scheme of the Act and the Rules and the scheme of MODVAT. Therefore the contention that the provisions of Section 11B of the Act will not apply has n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to fill in the prescribed form declaring that the goods imported within the municipal limits shall not be used for any other purpose for sale or otherwise. Since such declaration was not made the octroi authorities could not verify as to whether the raw material imported was utilised in the industrial undertaking without selling or disposing of otherwise. The Company later on realised that it had not filed such declaration and, therefore, contended that on the basis of the record and the financial accounts and other documents it could be shown that the goods imported were used in the industrial undertaking without selling or disposing of otherwise. On this basis the Company claimed refund of the alleged excess payment of octroi duty. The Supreme Court held that the incentive was sought to be given to such entrepreneurs who utilise the raw materials in the industrial undertaking without selling or disposing of otherwise. In order to see that the object is fulfilled, verification at the relevant time by the octroi authorities becomes very much necessary before concession can be given. In absence of declaration having been filed at the relevant time the Company could not claim such co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing computed in the prescribed manner. It was contended that it was the obligation of the Income Tax Officer to grant relief by looking at the record. In that connection the Supreme Court observed that before the Income-tax Officer can grant relief there must be clear data on the assessment record sufficient to enable him to consider whether the relief should be granted. In absence of such material no fault can be found with the Income Tax Officer for not making order under Section 84 favouring the assessee. We are afraid, the aforesaid decision does not help the petitioner. In the instant case it was for the assessee to avail of the credit. If he commits the mistake in availing full credit, he could rectify the mistake within the prescribed period of limitation. For availing the credit all the necessary details would be within the knowledge of the assessee. In fact MODVAT credit scheme relies upon the assessee and puts implicit faith on assessee and allows him to take credit. Therefore, by very nature of things the decision rendered in relation to the provisions of Section 84 (as it was in force at the relevant time) and Section 154 of the Income Tax Act, 1961 would not apply to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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