9911796707
TMI Blog2003 (11) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... entries and availed Modvat credit of the duty as under : Sl. No. B/E No. & Date Date of Payment Date of Delivery from ICD Date of Taking Credit 1. 108476 dt. 17-6-98 3-7-98 30-12-98 4-1-99 2. 108210 dt. 10-6-98 16-6-98 30-12-98 4-1-99 3. 108208 dt. 10-6-98 16-6-98 30-12-98 4-1-99 2.2 He, further, mentioned that the Tribunal vide Final Order No. A/48/2001/NB, dated 15-12-2000, had allowed the Modvat credit in respect of Bill of Entry No. 108476. He submitted that the date of issue of document in case of imported goods should be the date when the goods were given out of charge Order and received in the factory and not the date of Bill of Entry; that it has been held by the Tribunal in Bullows Paint Equipment Pvt. Ltd. v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2001 (135) E.L.T. 811 = 2001 (45) RLT 958 (CEGAT)] wherein it has been held that 'it would be reasonable to say that the "date of issue" in the case goods imported and cleared thereafter for home consumption can not be earlier than the date on which the importer can reasonably expect that the goods come into his hands soon. That would be the date on which the goods are passed out of Customs charge'. The learned Advocate thus contended that date of payment of duty, in the case of Bill of Entry, cannot be regarded as the date of issue of Bill of Entry for the purpose of Rule 57G of the Central Excise Rules, 1944; that as there is no date of issue in respect of Bill of Entry, the condition of taking Modvat credit within six months of issue of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that this Circular has been confirmed by the Tribunal in the case of CCE, Bhopal v. Orient Paper Mills, [2001 (134) E.L.T. 774 (T)]. 5. The learned Senior Departmental Representative, further, distinguished the decisions relied upon by the learned Advocate for the Appellants by submitting that in Hamco Mining & Smelting case neither the decision of the Larger Bench of the Tribunal in the case of Kusum Ingots & Alloys Ltd. v. CCE, Indore [2000 (120) E.L.T. 214 (Tribunal - LB) = 2000 (39) RLT 440 (CEGAT - LB)] nor the Board's Circular were discussed; that moreover the decision has been given on the basis of hypothetical reasoning that delay could be there in the clearance of goods after payment of duty; that in Phoenix Industries case again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom sub-rule 5 of Rule 57G of the Central Excise Rules. 6. We have considered the submissions of both the sides. Sub-Rule 3 of Rule 57G of the Central Excise Rules, 1944 provides that no Modvat credit shall be taken by the manufacturer unless the inputs are received in the factory under the cover of various documents mentioned in the Rules. One of the documents mentioned in the Rule is triplicate copy of Bill of Entry or duplicate copy of Bill of Entry generated on electronics data inter change system installed in any Customs or Central Excise Commissionerate. Further, sub-rule 5 of Rule 57G provides that credit shall also not be taken by the manufacturer after six months of the date of issue of any documents specified in sub-rule (3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7G is not issued and, therefore, provisions of sub-rule (5) of Rule 57G will not apply. As rightly pointed out by the learned Departmental Representative in none of the decisions relied upon by the learned Advocate and on account of which the Hon'ble Supreme Court has remanded the matter, the decision of the Larger Bench of the Tribunal has been referred to. In Bullows Paint Equipment case, the decision of the Larger Bench was not brought to the notice of the learned Single Member who has come to the conclusion that the sub-rule (5) does not apply to the goods received along with Bill of Entry. We respectfully do not agree with the finding in the said decision in view of the fact that Bill of Entry is one of the specified duty paying docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Appellants that Customs charge Order was made only on or around 30-12-98. Accordingly the decision in Hamco Mining case also does not help the Appellants at all. 7. We also observe that while remanding the matter, the Hon'ble Supreme Court in its Order dated 13-1-2003 has also mentioned that the Board has issued clarification by Circular dated 26-11-96. As mentioned by the learned Senior Departmental Representative, as per the said Circular in the case of imported inputs, the period of six months has to be computed from the date of payment of duty. We also observe that the Appellants have not rebutted the statement made by the learned Departmental Representative that the gate passes were issued on 17-6-98. They have also not disclose ..... X X X X Extracts X X X X X X X X Extracts X X X X
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