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TMI Blog2002 (4) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... laration under Rule 57G(2) declaring picture tubes of Heading 8540.12 as the final product. Size-wise declaration of final product was never made. All inputs covered by various Chapters were shown as inputs against the final product B W TV picture tubes under sub-heading 8540.12. 4.The appellants have always maintained RG-23A Part II on a consolidated basis treating the B W TV picture tube as final product irrespective of sizes and credit of all 31 inputs were taken in the same register and utilised for payment of duty on any picture tube being cleared from the factory. 5.Out of the 31 inputs, 29 inputs are common for all sizes of picture tubes. Glass shell and Electron gun meant for 14" picture tube cannot be used for the manufacture of 17" and 20" picture tubes and vis-a-vis. Until 28-2-1994, total Modvat credit available on all inputs used in picture tubes of any size, was less than duty paid on the picture tubes of corresponding size, on a one-to-one basis. From 1-3-1994 the duty paid on inputs used in one piece of 14" tube was more than the excise duty payable on one piece 14" tube. But the excise duty payable on a picture tube of size 17" and 20" was more than the dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these inputs are intended to be used. It was also held that Modvat credit of inputs used in the manufacture and export of 14" picture tube is not admissible for payment of duty on 17" and 20" picture tubes as 14" picture tube is not a similar product to 17" and 20" picture tubes. It was further held that only Rs. 34 lakhs is allowable being Modvat credit on the pro rata basis attributable to common inputs used in the manufacture of 17" and 20" picture tubes. While confirming the duty demand a penalty of Rs. 5,00,000/- was imposed under Rule 173Q(1)(bb). It was then held that since credit of Rs. 227 lakhs taken in RG-23A Part II forms part of the demand being confirmed by the order-in-original, there is no need to disallow this credit again. 8.Aggrieved by the above order, the assessee filed appeal. Commissioner (Appeals) affirmed the finding in the order-in-original. It was also held that with the introduction of Rule 57F(17) excess credit lying in relation to B W picture tubes as on 1-3-1997 has lapsed. Therefore, even if the credit now disallowed is paid in cash, the same cannot be credited in RG-23A Part II. 9.Before this Tribunal the appellant contended that the picture t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -headings of Chapter 87. Following the ratio of the decision in Nat Steel Equipment v. Collector - 1988 (34) E.L.T. 8 (S.C.) it was held that the word 'similar' does not mean identical and the issue was decided in favour of the appellant/assessee. Since both categories are treated as motor vehicle in common parlance they are to be treated as similar goods. In Ranbaxy Laboratories Ltd. v. Collector of Central Excise (Appeals), Chandigarh - 1997 (92) E.L.T. 400 (Tribunal) a similar issue arose for consideration of the Tribunal. The appellant was taking the benefit of Modvat credit on inputs used in the manufacture of bulk drugs. The appellant exported under bond without payment of duty, three bulk drugs i.e. Doxycycline Hydclate, Ranitidine HCL and Cephalexin Monohydrate and it used the credit taken on the inputs utilised in the manufacture of the above products for the payment of duty on the final product, namely Ampicillin Trihydrate in terms of Rule 57F(3). It was held that the assessee satisfied the conditions under Rule 57F(3) since the goods exported come under the general category of 'bulk drugs' under the same Heading. It was noted that 11 inputs were common in all the drugs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o deny the appellant the benefit of proviso to Rule 57F(4) and take Modvat credit in respect of the picture tube 14" for duty payable on picture tubes 17" or 20". 14.It is contended on behalf of the Revenue that the decisions relied on by the appellants were rendered entirety on different facts and therefore, the ratio contained therein cannot be applied in the present case. On the other hand, the learned DR placed reliance on the following decisions - (1) United Canning Company v. CCE - 1994 (74) E.L.T. 463, (2) Unipex Electronics Ltd. v. CCE - 1995 (79) E.L.T. 146, (3) Ipitron Times Ltd. v. CCE - 1993 (67) E.L.T. 430; and (4) Glass Moulding Industries v. CCE - 1994 (69) E.L.T. 590 which were found favour with the Commissioner (Appeals). It is further contended that even if the case of the appellant is accepted it will be entitled to refund only if it is proved that the credit they took has not been utilised. It is also pointed out that in view of the introduction of Rule 57F(17) vide Notification No. 6/97-C.E. (N.T.), dated 1-3-97 whatever excess credit was lying in relation to Black White picture tubes in any case has lapsed. 15.We fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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