TMI Blog2002 (6) TMI 269X X X X Extracts X X X X X X X X Extracts X X X X ..... il, 94 to Dec, 94 they had availed Modvat credit on the input Liquid Oxygen and had utilized the same for the manufacture of goods on job work basis. The goods so manufactured were cleared without payment of duty. Erstwhile Rule 57C of Central Excise Rules, 1944 provided that no credit of the specified duty paid on the inputs used in the manufacture of a final product shall be allowed if the final product is exempt from the whole of the duty of excise or is chargeable to Nil rate of duty. Besides Rule 57A provided that the inputs in respect of which the credit had been allowed may be utilized in or in relation to the manufacture of final products for which such inputs had been brought into the factory. 2. The credit availed by the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... larger period of limitation and confirmation of the same by the Additional Commissioner is unsustainable. There was no suppression or misdeclaration. Once the Department had dropped the proceedings, then the Additional Commissioner was not legally entitled to readjudicate the case without following the appellate provisions as laid down in Central Excise Act, 1944. The learned Commissioner (A) has relied on CEGAT, New Delhi s judgment in the case of M/s. National Industries v. CCE, Nagpur - 1997 (94) E.L.T. 92(T). 4. Aggrieved by the said OIA, the Revenue has filed this appeal on the following grounds : (a) The learned Commissioner of Central Excise (Appeals) has erred in allowing the assessee s appeal merely on the technical ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case was not adjudicated, the question of following appellate provisions as laid down in the Act will not arise. (c) The question whether there is suppression or not will become an issue to be considered when there is any demand under Rule 57-I(1) of Central Excise Rules, 1944 i.e. when there is wrong availment of Modvat credit. In the instant case there was no contention that the credit was wrongly availed. The contention was all about wrong utilization of the inputs and such wrong utilization of the inputs is covered under the provisions of erstwhile Rule 57-I(2) of Central Excise Rules, 1944 under which there is no time-limit for issue of demand notice. The Tribunal in the case of Siemen Ltd. v. CCE, Calcutta, 1995 (80) E.L.T. 66 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to why documents of Modvat credit of Rs. 1,74,382/- under Rule 57-I should not be determined as recoverable, as the same was availed on duty paid on inputs, used for job work purpose. This notice was dated 30-1-96 and covered the period July 94 to December 94. The respondents replied this notice on 22-3-96, a personal hearing was granted and the appellants were heard by the Assistant Commissioner on 29-7-98 by an order dt. 9-4-99, this notice was withdrawn by the Assistant Commissioner. Meanwhile, another show cause notice dt 7-4-99 was issued by Deputy Commissioner answerable to the Addl. Commissioner for the period April, 94 to December, 94, on the same reasons proposing recovery of Modvat credit on inputs used in job work. This notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner (Appeals) can be taken up under Section 35 of Central Excise Act, 1944 against any decision or order ministerial or quasi judicial, passed under the Act by a Central Excise Officer lower in rank than the Commissioner (Appeals) unlike Section 35B of the Act where appeals to Tribunal could be made only against an order passed by a Commissioner as an adjudicating authority. This Order of withdrawal of demand notice for the period July, 1994 to December, 1944 is therefore valid till it is set aside. Therefore, we find substance in the cross-appeal filed by the Respondents herein. (d) As regards the question of res judicata and estoppel being pleaded, we find that the Tribunal in the case of Godrej Boyce Mfg. Co. Ltd., 1994 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on merits, when we find that no new material has been brought by the Revenue to prove that the Respondents herein had not contested the earlier show cause notice on merits. In this view, we cannot uphold the plea that demands for April to June, 94 to be redetermined. (e) There are catena of decisions some of them were cited during the course of hearing. They lead to the proposition that the conduct of issuing the second show cause notice in such case could not be upheld. We find substance in the said proposition made relying upon the decision of the Hon ble Calcutta High Court AIR 1961 Cal 195 in the case of Jiban Saha v S.K. Chatterjee wherein it was held that if the second/revised notice issued on identical terms notwithstanding the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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