TMI Blog1995 (4) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... it taken by them on the ground that there was no provision for availing notional higher credit at a later date. Collector (Appeals) set aside this order of the Assistant Collector and allowed the appeal, following the ratio of two Tribunal decisions 1991 (52) E.L.T. 590 (Tribunal) = 1991 (33) ECR 329, Collector of Central Excise, Bangalore v. Mysore Lac and Paint Works Ltd. and 1990 (50) E.L.T. 312 (Tribunal) = 1991 (31) ECR 512 - Larsen Toubro Ltd. v. Collector of Central Excise, Bangalore which were relied upon by them. It was held that additional credit can be taken later on if it is found that credit was taken short. Aggrieved with this decision of Collector (Appeals) the present appeal has been filed. In the appeal it has been submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus the credit of duty from a certain quantity or lot of inputs can be utilised only for payment of duty for the final products manufactured from that lot and not for those manufactured from different lots, say previous lots as held by the Tribunal in East India Pharmaceutical Works v. Collector reported in 1991 (54) E.L.T. 355 (Tribunal) = 1991 (35) ECR 318. It has, therefore, been urged that the higher notional credit can be taken at a later date when and only when inputs are also available physically or the final product in which such inputs have been used are physically available. The higher notional credit under Rule 57B can be applied only when it does not infringe the provisions of the Statute. If higher notional credit is allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Calcutta answers the Reference. She submitted that the Collector (Appeals) has correctly followed the Tribunal decision in the Mysore Lac Paints Works Ltd. case and allowed the differential credit amount taken by them subsequent to the original taking of the credit. She pleaded that the order in appeal be upheld and the department s appeal dismissed. 3. I have taken note of the submissions of both the sides. I have perused the record. I have also gone through the decisions cited in the appeal and in the impugned order in appeal. Ms. Thawani, learned representative of the respondents, is correct when she says that the East India Pharmaceutical Works Ltd. decision of the Tribunal is not applicable in the facts of the present case. The ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urer (Modvat user). The view canvassed in the appeal deserves to be rejected outright and I hold accordingly. 4. The actual issue involved in the appeal has not come out properly in neither of the orders of the authorities below nor, for that matter in the present appeal. Only from the enclosure to the show cause notice it is seen that the disputed credit or rather disputed higher notional credit under Rule 57B had arisen from payment of duty by the input manufacturer subsequent to the original payment of duty by him at the time of clearance of the goods. Ms. Thawani stated in reply to a question from me that this differential duty was paid by the said input manufacturer on account of escalation of value and they had taken the differentia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the details shown in the enclosure to the show cause notice do not indicate that, following the payment of differential duty by the input manufacturer (the reason for which is not indicated but stated by Ms. Thawani during the hearing as due to escalation of assessable value), the respondents took the additional credit arising from such escalation of assessable value at the hands of the input manufacturer in two stages, once of the actual duty amount shown in the Range Officer s certificate and subsequently of the differential higher notional credit on account of the operation of Rule 57B. The entire differential or additional credit including the notional higher credit, due to application of Rule 57B has been shown as having been taken ..... X X X X Extracts X X X X X X X X Extracts X X X X
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