9911796707
TMI Blog2003 (5) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... -96 and used the same in the production of non-dutiable final product i.e. Lamp costing less than Rs. 10/-; that they had availed the Modvat credit on 20-6-97, nearly 13 months after the date of installation of machine; that the Assistant Commissioner had allowed the Modvat credit, under Order-in-Original No. 139/98, dated 30-6-98 on the ground that on the date of availing of credit, the final product GLS Lamp costing less than Rs. 10/- had become dutiable; that Commissioner (Appeals) also, under the impugned Order, has rejected Revenue's appeal, holding that as there was no time limit applicable for taking the credit under Rule 57Q, Provisions of Rule 57R(1) were not attracted in the matter. He relied upon the decision in CCE, Coimbatore v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable. 3. On the other hand, Shri B.L. Narasimhan, learned Advocate, submitted that the machine in question can be used in the manufacture of GLS glass lamps in 60 mm dia shells in different wattages in the range of 25W to 100W; that the Assistant Commissioner has given a specific finding in the Adjudication Order that the machine is capable of being used in the manufacture of exempted final products as well as dutiable final products; that the said finding has not been challenged by the Revenue; that Rule 57R(1) is applicable only when in its entire life span only exempted goods are to be manufactured and hence cannot be applied when the capital goods are usable for both exempted as well as dutiable goods; that the decision in Seng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty on the date when the capital goods credit was taken, that credit cannot be denied. Reliance has also been placed on the decision in Kailash Auto Builders Ltd. v. CCE (A), Bangalore - 2002 (140) E.L.T. 148 (Tribunal) = 2001 (47) RLT 950 (CEGAT), and the Supreme Industries Ltd. v. CCE, Mumbai-V - 2002 (149) E.L.T. 659 (Tribunal) = 2002 (100) ECR 101 (T). 4. In reply, the learned SDR submitted that Rule 57R(1) clearly provides that no credit shall be allowed on capital goods which are used in the manufacture of final products on which no amount of excise duty is payable; that further Rule 57T(2) also requires the manufacturer to file a declaration in accordance with the provisions of sub-rule (1) of Rule 57R to the effect that such capita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. If the capital goods are exclusively used in the manufacture of exempted products, Modvat credit will not be available to the manufacturer. Subsequently, the exempted product becomes dutiable on account of withdrawal of exemption or the manufacturer puts the capital goods to other use would not revive the question of Modvat credit which stands determined at the time the capital goods was received. The decision of the single Bench of the Tribunal in Kailash Auto Builders case is not applicable to the facts of the present matter as the Appellants therein "have made their intention clear that they would be using the said capital goods in the manufacture of excisable final products once the factory starts working to its full capacity." Furth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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