9911796707
TMI Blog2001 (7) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... credit has been denied to them on the plea that the credit was taken beyond a period of 6 months from the date of issue of 57E Certificate. 2. Shri A. Vijayaraghavan, ld. Consultant invited my attention to para 2 of the Order-in-Appeal dated 30-11-1998 in which the Commissioner (Appeals) has relied on the judgment of Hon'ble Supreme Court in the case of Govt. of India v. Citadel Fine Pharmaceuticals [1989 (42) E.L.T. 515 (S.C.)] wherein the Hon'ble Supreme Court has held that in the absence of any period of limitation, every authority has to exercise the power within a reasonable period and that the period of 6 months in the normal circumstance was held to be the reasonable period. Ld. Consultant submitted that the above judgment has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tial duty was paid subsequently, the Modvat taken for this differential/additional duty on the strength of the certificate issued by the authority, no time limit was prescribed during the relevant period. Para 15 of the said order is extracted below :- "15. The right of the manufacturer of final products to take credit of the duty paid on specified inputs after obtaining dated acknowledgement is absolute and without any conditions other than those in Rule 57G. The first proviso to Rule 57G(2) introduced in 1995 imposes a time limit on the exercise of the right, namely, limit of six months from the date of issue of any of the documents specified in the first proviso, namely Gate Pass (or later, invoice), AR 1, Bill of Entry. In the very na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al products to take credit of duty paid by manufacturers of inputs subsequent to clearance of inputs. The same must necessarily be the position when on account of variation of duty refund is made to the manufacturer of inputs. Such variation amounts to correction of entry relating to quantum of duty in the documents referred to in the first proviso to Rule 57G(2). Since the right of the manufacturer of final products is to take credit of the actual and correct amount of duty, where he has taken excess credit on the basis of the documents aforesaid, he has an inherent obligation to reverse the excess credit or pay the excess amount; that being so, in the event of his failure to do so, the Department has right to direct him to do the right th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e above submissions, the ld. Consultant stated that the impugned order passed by the Commissioner (Appeals) may be set aside and the order passed by the original authority may be restored. 3. Ld. DR Shri Jayachandran has reiterated the findings in the impugned order as contained in paras 2 to 5 which are extracted herein below :- "2. The Department opposed the above view of the Assistant Commissioner by filing the present appeal on the ground that the A.C. should have followed the decision rendered by CEGAT, SRB, in the case of M/s. Brakes India Ltd. on the similar issue; that the CEGAT, SRB,. vide their order No. 359/95, dated 30-5-1995 (in a batch of appeals) decided the issue of applicability of the bar of limitation when a statute d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra) has been distinguished by the Hon'ble Supreme Court from the case of C.C.E., Jaipur v. Raghuvir India Ltd. (supra) and has held that there cannot be any specific time except what is fixed by statute. The Tribunal in the case of Tata Engineering Locomotive Company v. C.C.E., Bombay (supra) followed by C.C.E., Jaipur v. Parasrampuria Synthetics Ltd. have categorically held that when initial credit taken was within the prescribed period, the additional or differential credit being taken later, the bar created by the amended rule would have no application. I, therefore, find that the impugned order of the Commissioner (Appeals) is not legal and the same is set aside and the appeal is allowed with consequential relief, if any. Ordered a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
