TMI Blog1991 (9) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... em 2107.91 which was not covered by Modvat Scheme but were under Rule 56A procedure of the Central Excise Rules. The goods were reclassified later by the Department on 23-9-1986 to fall under Chapter 3204, and this then came to be covered by Modvat Scheme. The appellants after 22-9-1986 have been taking credit under Rule 56A in R.G. 23 and later when the goods were classified under Chapter 32 they filed a declaration for the benefit of Modvat credit and sought for the transfer of proforma credit under Rule 56A from their RG 23 to RG 23A for Modvat purposes, and the lower authorities have held that in terms of Rule 57H(3) the credit remaining unutilised and that was available after 1-3-1986 could not be transferred in respect of the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . , reported in 1990 (48) E.L.T. 287 in which under similar circumstances the transfer of the credit was allowed, relying on the decision of the Special Bench in the case of Sundaram Fasteners v. Collr. of C. Ex. [1987 (29) E.L.T. 275]. 3. The ld. SDR, however, adopted the reasoning of the lower authorities and relied on the finding of the learned Collector (Appeals) for the rejection of the appellants case. 4. We observe that the ld. lower appellate authority in the impugned order has held as under - I have carefully considered the submissions made by the ld. consultant. The ld. consultant showed me the revised Rule 57H(3) as in the same book it is stated that Rule 57H(3) is substituted by Notification 23/87-C.E., dated 1-3-1987. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benefits of amended sub-rule which came into force after 3 months of the date of order could not be taken into consideration by the Asstt. Collector nor it can be taken into consideration in appeal because that notification cannot be held to be of retrospective effect. 5. We observe that the Special Bench of the Tribunal in similar circumstances cited the case of Sundaram Fasteners referred to supra and took note of the plea of the appellants on the interpretation of the statute lex non cogit ad impossibilia as under - Impossibility of Compliance - Enactments which impose duties upon conditions are, when these are not construed as conditions precedent to the exercise of a jurisdiction, subject to the maxim, lex non cogit ad impas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gible for the Modvat credit from 1-3-1986 if the goods were held assessable under Chapter 21. The classification was changed by the authorities from 23-9-1986 and no fault could be found with the appellants. No doubt under Rule 57H(3) at the relevant time, only that quantum of credit which was outstanding in the R.G. 23 immediately before 1-3-1986 could be allowed to be transferred to R.G. 23A under the Modvat Scheme and the credit was to be allowed as credit lying unutilised as on 1-3-1986 whereas after that date the said credit could not be transferred when the appellants ceased to avail of the proforma credit under Rule 56A in the light of the provisions of Rule 57H(3) as it stood at the relevant time. However, the appellants could not c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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