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TMI Blog2002 (2) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... The preamble to this order shows the correct names. 2.The common question for consideration in these 34 appeals is whether a manufacturer could take Modvat credit of the duty paid on input used in the manufacture of processed fabrics which were cleared without payment of duty under Notification 47/94 issued under Rule 13 for the manufacture of made-up textile articles which were for the export. Each of the manufacturers was at the relevant time engaged in the processing of textile fabrics. Such fabrics are liable to duty. Being specified in the table to Notification 29/96 issued under Rule 57A, the goods are eligible for deemed Modvat credit. Duty deemed to have been paid on the inputs used in or in relation to manufacture of such processe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this notification. The provisions of Chapter X were followed and duty which was otherwise leviable was not paid. 4.Three out of the respondents that we are concerned are located in Ahmedabad. By letter dated 27-4-1998, the Superintendent having jurisdiction over these, ordered reversal with interest of the deemed Modvat credit that had been taken. The letter did not give any clear reasons for reversal of the credit. The three respondents complied with this requirement and "reversed" the credit, nullifying the credit taken. Each of the manufacturers however protested the action of the Superintendent contending that it was entitled to take the credit. They pointed out that they would continue to take the credit. 5.Subsequently the manufa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner (Appeals) who allowed their appeals and ordered payment of refund. 7.These appeals are by the Commissioner against the order of the Commissioner (Appeals). 8.The ground advanced in the show cause notice, repeated in the appeal, is that the provisions of Rule 57C are attracted, is not available to the department. This issue has already been decided by the Tribunal in the case of one of these respondents. In CCE v. Omkar Texlile Mills Ltd. - 2000 (122) E.L.T. 115, the Tribunal has held that since Notification 47/94 was issued in order to give effect with the provisions of Rule 13, and was not a notification issued under Rule 8 or Section 5A of the Act, granting exemption from duty, the provisions of Rule 57C would not have applied to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng duty on the final products cleared for home consumption. He offers to do so even now, in the case of Omkar Textiles and Gopi Synthetics. He contends on behalf of Alok Synthetics that it has closed down, cash refund therefore has to be given in such cases. In its decision in CCE v. Deepak Vegetable Oil Industries - 2001 (127) E.L.T. 817 (T) = 2000 (41) RLT 739 the Tribunal found that where by reason of the department's action or default the manufacturer is unable to avail money Modvat credit which it found that he was entitled to, and he was unable to use the money credit by reason of the fact that purported to give him relief available to him. Subsequently it is found that he was entitled to receive cash refund of the credit. It is clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion whether the refund claims are barred by limitation. 11.The Departmental Representative's objection that, once the manufacturer opted to ask for refund, he cannot now withdraw that claim, is obviously untenable. The refund in fact is available only in case the manufacturer is not able to utilise the credit in accordance with the provisions of the rule. It is an alternative that comes into play only when the first course is not available to the manufacturer. When the manufacturer is not able to take recourse to the first provision of using the credit to pay duty on other finished products. 12.In these circumstances, it is not necessary for us to consider the ground in the appeal that the refunds were barred by limitation. The positi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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