9911796707
TMI Blog2002 (5) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... by its Order dated 11-7-2000 made in Appeal No. E/273/99-NB and other connected matters took the view that after the introduction of the said proviso, a manufacturer cannot take the Modvat credit after six months from the date of the documents specified in the first proviso to Rule 57G of the Rules. 2. Being aggrieved by the said order of the Tribunal, the appellants have preferred these appeals questioning the correctness of that order. 3. Prior to the introduction of the second proviso to Rule 57G i.e. prior to 29-6-1995, a manufacturer was entitled to withdraw the said credit at any time without there being a limitation on such withdrawal. On 29-6-1995, second proviso to Rule 57G was introduced by substituting the then existing provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prior to 29-6-1995. In the case of M/s. Kusum Ingots & Alloys Ltd. v. Commissioner of Central Excise, Indore, which is one of the appellants hereinabove, a further contention was advanced that the six months' period contemplated under the newly introduced proviso expired in its case on 30-6-1995 i.e. a day after the introduction of the new proviso, therefore, it had no opportunity of availing the credit which was otherwise due to it. Consequently, the introduction of the proviso amounted to canceling the credit itself. 5. On behalf of the Revenue, it is contended that the language of the newly introduced proviso is very clear and admits of no ambiguity, therefore, the question of interpretation of the Rule contrary to the said language doe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T. 3 (S.C.)] wherein this Court had held that a right accrued to an assessee on the date when it paid the tax on the raw-materials or the inputs would continue until the facility available thereto gets worked out or until those goods existed. In that background, this Court held that by Section 37 of the Act, the authorities concerned cannot make a rule which could take away the said right on goods manufactured prior to the date specified in the concerned rule. In the facts of Eicher's case (supra), it is seen that by introduction of Rule 57F(4A) to the Rules, a credit which was lying unutilized on 16-3-1995 with the manufacturer was held to have lapsed. Therefore, that was a case wherein by introduction of the rule a credit which was in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has questioned the legality, or the validity of the rule in question, therefore, any argument which in effect questions the validity of the rule, cannot be permitted to be raised. The argument of the appellants that there was no time whatsoever given to some of the manufacturers to avail the credit after the introduction of the rule also is based on arbitrariness of the rule, and the same also will have to be rejected on the ground that there is no challenge to the validity of the rule. 9. Without such a challenge, the appellants want us to interpret the rule to mean that the rule in question is not applicable in regard to credits acquired by a manufacturer prior to the coming into force of the rule. This we find it difficult because in o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected appeals, a similar prayer by the manufacturer for setting aside the penalty was entertained and the penalty as against those appellants was set aside. We are satisfied that this is a just complaint and on facts and circumstances of these cases also, we are of the opinion that the penalty imposed against the said appellant should be set aside. To that extent these appeals should succeed. 11. There is a further plea addressed on behalf of the appellants in C.A. Nos. 6199-6201 of 2000 that their Company in question is before the Board for Industrial & Financial Reconstruction (the BIFR) which has framed a scheme, therefore, there could be no recovery of amount from the said Company except in accordance with the said scheme. In support o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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