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TMI Blog2005 (12) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... tment that since the credit was taken after expiry period of six months from the date of Bill of Entry, the credit was not legal in view of Rule 57G(5) of Central Excise Rules, 1994 at the relevant time. The case was adjudicated by the Dy. Commissioner, who disallowed the credit of Rs. 92,131.97 to the respondent. The Commissioner (Appeals) however reversed the order of the original authority and allowed the credit on the ground that the contention of the appellant is that the imported scrap had been cleared by the Customs authorities in piece-meals in view of the procedure laid down by the Customs authorities at Kandla port and as such the material reached the factory premises on 20-8-1990 and 18-9-1996. The credit was taken on 21-8-1996 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the respondents are relying were not issued by the Customs authorities nor the goods were cleared under those gate passes from the Customs charge. Those gate passes were issued by M/s. A.V. Joshi & Company, a clearing agent. From this it is clear that the goods were kept by the clearing agent in his godown after clearance from the Customs and these were being transported by the respondent according to their requirement. 3. On behalf of the respondent, it was pleaded that since the original authority has not given the exact date of clearance of the goods from the Customs, therefore, he has proceeded on a presumption. He relied on the decision of the Tribunal in the case of M/s. Phoenix Industries Ltd. reported in 2001 (131) E.L.T. 82 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs after they have paid the duty. No evidence of any detention by customs authorities was shown. Therefore, I find that the Commissioner (Appeals) has wrongly applied the ratio of decision in case of Phoenix Industries (supra), that the date should be reckoned on the basis of the date of receipt of the goods in the factory after release from the custodian. In case of Phoenix Industries (supra) it was held that time of six months is to be computed from the date of clearance of goods from custody of Airport authority i.e. the Custodian. In the present case, the goods were not detained after assessment. Therefore, it is not a marginal delay but the delay is of one month in one case and about four months in other case for taking the credi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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