9911796707
TMI Blog2002 (2) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... ly excluded from the ambit of Rule 57Q in terms of Notification No. 14/96-C.E. (N.T.), dated 23-7-96. Once they were ineligible from taking of Modvat credit on the date of receipt they can not under any circumstances become eligible on the date of taking credit as the question of eligibility arises with reference to the law prevailing at the time of receipt of the goods as mentioned above and can not be postponed to a later date. Hence the aforesaid Modvat credit could not have been taken by the appellants and has correctly been denied. No case law has been brought on record to say that amendment made by Notification No. 25/96-C.E. (N.T.), dated 31-8-96 was clarificatory in nature. The case laws relied upon by the appellants are also distin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the period 23-7-96 to 31-8-96. During this period the goods in dispute were excluded from the purview of capital goods in terms of Notification No. 14/96-C.E. (N.T.), dated 23-7-96. Such goods were covered in terms of Notification No. 25/96-C.E. (N.T.) w.e.f. 31-8-96. A show cause notice was issued to the appellant(s) asking them to explain as to why Modvat credit should not be denied and why penalty should not be imposed. In reply to the show cause notice the appellants submitted that they purchased capital goods classifiable u/s.h. 8474.10 during the period 23-7-96 to 31-8-96 for setting up of new cement plant; that they took credit in the month of July, 1997 on installation-cum-use in November, 1996 in terms of Notification No. 1/96, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he short period between 23rd July, 1996 and 31st August, 1996 when the goods by mistake got omitted from eligibility to Modvat credit. He submits, therefore, that the eligibility should be taken in continuity otherwise it will lead to discrimination which is not permitted by the Constitution of India. 4.Learned Counsel submits that Modvat credit u/r 57Q became eligible to the appellants on the date of installation of the goods and not on the date of receipt of the goods in the factory. He submits that installation/use of the goods in the factory was in the month of November, 1996 whereas the goods in dispute had become eligible to Modvat credit w.e.f. 31st August, 1996. Since eligibility of the date is criterion for taking Modvat credit th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods get installed; the applicant can take again credit and thus the entire exercise of reversing credit and taking credit is revenue neutral to the applicants." 6.Learned Counsel summing up his arguments submits that since the date of eligibility of the credit on the capital goods is the date of installation and that in the instant case, on the date of installation the goods became eligible for Modvat credit on capital goods, therefore, the denial of Modvat credit is not warranted. He, therefore, prayed that the appeal may be allowed. 7.Shri Mewa Singh, learned SDR reiterates the findings of the Authorities below. He submits that the learned Commissioner (Appeals) has distinguished the various decisions of the Tribunal cited by the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date of installation of the goods was after 31-8-96, therefore, Modvat credit was admissible to them. However, the Revenue was of the view that it is the date of receipt of the goods in the factory and that the date of installation is only a deferred date. The contention of the Revenue is that Modvat credit must accrue on the goods on the date of receipt in the factory and not on the date of installation. We agree with this contention of the Revenue inasmuch as that two issues are involved. The first issue is what is the date on which Modvat credit becomes available to the goods. The second issue is whether date of installation can be considered as the date on which the goods should be eligible to Modvat credit. We note that vested right o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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