9911796707
TMI Blog2003 (10) TMI 244X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the manufacture of Aerated Waters in terms of the provisions of Rule 57B(2)(iv) and as such, no Credit was being availed by them. With effect from 1-4-2000, the Modvat Scheme was replaced by Cenvat Scheme and the Modvat provisions were replaced by a new set of Rules from 57AA to 57AK. With the introduction of the said Rules, the appellants became entitled to the Cenvat credit of duty paid on the Glass Bottles and Plastic Crates, inasmuch as the definition of inputs as contained in Rule 57AA specifically included the packaging materials. There is no dispute about the legal position of availing of credit in respect of bottles and crates with effect from 1-4-2000. The dispute in the present appeal relates to the appellants' claim of credit in respect of the bottles and crates which were lying in their factory on 1-4-2000, either as such or in the shape of the final product or in the shape of under-process goods. 3. As per facts on record, the appellants vide their letter dated 30-10-2000 addressed to the Assistant Commissioner of Central Excise, Division, Muzaffarpur, claimed the benefit of Credit of Rs. 37,24,475.79 in respect of bottles and Rs. 13,70,759.98 (Rupees thirteen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellants on the same grounds. He submits that the Commissioner has erred in holding that the said letter was not an order, but was merely a decision taken by the Deputy Commissioner in his administrative capacity. The said letter was written by the Deputy Commissioner after hearing the appellants in person and as such, submits the learned Advocate, the same has to be treated as an Order. 6. We do not find any force in the above contention of the learned Advocate. The letter dated 24-1-2001 has been placed at page 35 of the paper-book filed by the appellants. It is clear from the scrutiny of the said letter that the same is in the form of a communication intimating the appellants that they are entitled to take the Cenvat credit on the inputs in stock held on 1-4-2000 subject to verification of the documents. The same is not in the shape of adjudication and as such, the question of the Revenue filing any appeal thereagainst, does not arise. It is also seen that subsequently 15-5-2001, the Deputy Commissioner made a communication to the appellants and intimated them that, the Glass Bottles and Plastic Crates brought in their factory prior to 28-2-2000 would not earn Modvat credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect of the Glass Bottles and the Plastic Crates prior to 1-4-2000 because of the simple reason that such inputs stood excluded from the definition of 'inputs' prior to the said date. Inasmuch as no Credit was earned, question of the same being taken as Cenvat credit, does not arise at all. There is no provision under the New Cenvat Rules allowing the assessee to take the Credit in respect of the inputs lying in their stock as on 1-4-2001, if the same were not entitled to Modvat credit prior to the said date and no Credit was earned by the assessee in respect of the said inputs. The reading of the provisions of Rule 57AG relating to the transitional period clearly establishes that only those inputs on which Credit was being availed and which continued to be covered by the new provisions of Cenvat Rules, would be entitled to claim the unutilised Modvat credit as Cenvat credit and to use the same in accordance with New Rules. Inasmuch as the inputs in question were not covered by the provisions of the Scheme of Credit and no Credit stood earned by the appellants, they cannot claim the benefit of Credit under the new set of Rules by contending that the inputs in question were lying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o quantify the amount of admissible credit on the basis of documentary evidence and records maintained for this purpose." A reading of the above Circular would reveal that the same is not applicable to the peculiar facts and circumstances of the present case. The said Circular deals with the situation where an SSI unit crosses the exemption limit of Rs. 100.00 lakhs and starts paying duty on its final product thereafter, after availing the benefit of Credit in respect of the inputs. It is in those circumstances that the Board has observed that whatever stocks are being held by the SSI unit on the date of crossing of Rs. 100.00 lakhs limit, the Cenvat credit of Duty paid on the same should be extended to them. Similarly, the later portion of the said Circular, which allows the benefit to non-SSI unit which begins to pay duty in the middle of the year, is of no avail to the appellants, inasmuch as the same deals with the entirely different situation. The appellants have drawn our attention to the Tribunal's decision in the case C.C.E. v. Kandhari Beverages reported in 2002 (48) RLT 919 laying down that the Glass Bottles and Plastic Crates are eligible inputs for the purposes of Mod ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
