TMI Blog1997 (8) TMI 294X X X X Extracts X X X X X X X X Extracts X X X X ..... ture of Iron Steel Billets falling under sub-heading 72.06 of the Schedule to the Central Excise Tariff Act, 1985 and are availing the facility under the Modvat scheme. During the period from 7/94 to 9/94 appellants availed Modvat credit of Rs. 3,42,396.50 on refractories and also took re-credit of Rs. 2,46,852.75 in RG 23A Pt. II on 26-9-1994 in respect of ramming mass which was earlier debited by them on 22-3-1991 on the visit of audit party. Department held the view that the appellants were not entitled to the Modvat credit of Rs. 3,42,396.50 which was taken in contravention of the provisions under Rule 57Q and credit of Rs. 2,46,852.75 re-credited after the expiry of more than 3 years was taken in violation of the provisions of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of Collector of Central Excise v. A.B. Tools Ltd. as reported in 1994 (71) E.L.T. 776 and not in their own case. He has observed that had the assessee felt that the decision in A.B. Tools case was applicable to them also they could have represented to their jurisdictional Assistant Commissioner. But they did not choose to do so. The assessee had addressed a letter dated 23-8-1994 to the concerned Assistant Commissioner Jammu informing him of their intention to take re-credit of the said amount, they should have awaited the permission of the concerned Assistant Commissioner. Therefore, he has held that it was improper on the part of the assessee to take suo moto re-credit of the amount of the credit already debited. He has looked into the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dit of the amount in respect of ramming mass which was earlier debited by them on 22-3-1991 and there is no time limit prescribed for such recrediting the amounts, even as in the present case, it was recredited after 3 years. The learned Counsel submits that there is no need for them to file any refund claim. On a particular query from the Bench, the learned Counsel submits that there is no provision for taking recredit and that the assessee had also not paid duty on protest nor they had debited the amount on 22-3-1991 on the visit and objection of audit party on protest. The learned Advocate relied on the judgments cited by the assessee and submits that the same is applicable to the facts of the present case. The learned Sr. Advocate relie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22-3-1991 on an objection raised by the audit party. A question which arises is as to whether they can take re-credit of the amount which they had debited on 22-3-1991 after a lapse of 3 years? The answer to this is a simple No. The learned Sr. Advocate very fairly conceded that there is no procedure for the assessee to take re-credit on their own and there is no provision in law. He also rightly conceded that the procedure for recovery of short levy etc. or for claim of refund of duty, is only through procedure laid down under Section 11A and Section 11B of the Act. The assessee in the present case has conceded the departments objection redebited the amount on 22-3-1991. If the appellants felt that they were not required to redebit the am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith Rule 57B, the respondents are eligible to take the credit to the extent they have taken. In the absence of any specific rule, it has to be held that within a reasonable time, the respondents can take the credit due to them so long as they satisfy all the other criteria for eligibility of Modvat credit. The Tribunal has held that in the instant case, there is no doubt about eligibility of the Respondents for availing of the Modvat credit. It has been held that it is not as if the respondents had taken the credit after 6 months which can be taken as a reasonable limit within which they should take the credit, taking into consideration the provisions for refund under Section 11B of the Central Excises Salt Act, 1944. As can be seen from ..... X X X X Extracts X X X X X X X X Extracts X X X X
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