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TMI Blog2005 (10) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... imed in the revised list filed the benefit of this Notification No. 225/86, expressly declaring that ACN was captively consumed in the manufacture of Acrylic fibre and they would discharge the full tariff rate duty at 15% and will not avail benefit of Notification 40/85. This was permitted by the Assistant Commissioner vide letter 28-7-89. (b) Appellants thereafter paid duty on ACN and took set off credit in RG 23 Part II and utilized the said credit for payment of duty on Acrylic fibre i.e. the procedures prescribed to avail a set off Notification under the Central Excise Rules, 1944. 1.4 This sanction by the Assistant Commissioners dated 28-7-89 and the procedures adopted, as per the Rules, was objected by the Range-I Superintendent of Central Excise and direction was issued not to avail set off benefit under Notification 225/86 vide letter dated 26-12-90. This was complied by the appellants. They, vide letter dated 3-1-91, informed the Department that they have stopped paying duty on ACN and this letter also records the direction of the Superintendent as given not to avail the benefit of Notification 225/86. Vide letter dated 15-1-91, they requested the said Superintendent f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overed under Rule 57H(3). Keeping in view the facts of the case, I find that the matter of the appellant is not covered under Rule 57H(a), since their matter does not pertain to availing of special procedure under Rule 56A. Now I am proceeding to examine whether their matter is covered under Rule 57H(3)(b). This provision is applicable where the manufacturer has availed of an exemption for giving credit with respect to duty paid on the materials or component parts used in the manufacture of finished excisable goods. In view of this, it has to be ascertain whether the appellant has availed an exemption for giving credit with respect to duty paid on the inputs or otherwise. It is on record that the appellant has availed exemption Notification No. 225/86 dated 3-4-96. I have examined the provisions of this notification. In my view, this notification does not provide for availing of any credit with respect to duty paid on inputs. This notification only provides set off of duty leviable on finished goods equal to the duty paid on specified inputs. Exemption notification providing for availment of credit with respect to duty paid on finished goods equal to the duty paid on inputs. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory, notwithstanding the fact that the amount of input credit duty with reference to actual contents in the finished goods is much lower. We note that, Notification No. 355/86-C.E. requires strict determination of duty reduction on finished goods, ascertaining the duty paid on the actual quantity of inputs contained in the finished goods. Therefore, the findings of the Ld. Commissioner that the taking of benefit under Notification No. 355/86-C.E., amounts to taking credit under any other Rule or Notification cannot be sustained." In view of the above, exemption Notification No. 225/86, dated 3-4-86, availed by the appellants cannot be considered as exemption notification, within the meaning of Rule 57H(3), allowing credit on inputs used in the manufacture of finished goods. Therefore, the claim of the appellants for transfer of the set off amount to their RG 23, under the provision of Rule 57H(3) is not admissible. Admittedly, the appellant has not submitted the declaration to Assistant Commissioner/Commissioner for permission to transfer the set off amount under Rule 57H(3). On this count also, their claim for transfer of the set off amount can not be entertained. Further, I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tempt to prove as to how the matter is not covered by the judgment of Hon'ble Supreme Court in case of Solar Pesticides despite the fact adjudicating authority has relied upon the same. The appellants have further not produced any evidence to prove that the incidence of duty suffered on inputs has not been passed on. The appellants have merely stated that the unjust enrichment is not applicable since their case is covered by the Section 11(B)(2)(c) which reads below :- (c) refund of credit of duty paid on excisable goods used as inputs in accordance with the rules made, or any notification issued, under this Act; I find that the aforesaid provision is applicable to refund of credit of duty paid on inputs. However, in the appellants' case, the refund pertains to set off amount, which cannot be equated to credit of duty of duty of inputs in view of the decision of the Tribunal in the case of M/s. GTC - 2004 (163) E.L.T. 468 (Tri.-Delhi.). Therefore, the appellants cannot take recourse to Section 11B(2)(c). In view of the above discussion, the appellants are not eligible for transfer of the set off amount to their Modvat/Cenvat account in terms of the provisions of Rule 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tire duty so paid. It is nobody's case that Acrylonitrile was required to pay the duty that was factually paid. The Department had also not sought to deny the refund on any other grounds of ineligibility. 2.3 The rejection of the refund on grounds of RG-23 Part-I not being presented in an observation of CCE(A) that is required to be discussed ab inito as there is nothing on record that it was asked for. In any case, a copy of the same is sent to the Department and under Physical Control they should possess the same. This was not a reason to reject the claim earlier round when camp up to this Tribunal. The finding of the Assistant Commissioner in Order dated 8-6-98 to the effect - (i) "The assessee has also not mentioned the actual quantity of ACN lying in stock in Part-I for which the assessee has claimed for refund. (ii) They have not been able to produce copies of RG 23A Part-1. (iii) That no copy of RG 23A Part-1 has been supplied. is a new ground in de novo order and in any case the copy of RG 23A Part-I was submitted as seen from the photocopy paper book. The empowerment in the de novo proceedings, in this case, cannot be allowed. The same judg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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