TMI Blog2006 (8) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... lessly time barred and the confirmation thereof is set aside. The issue before the Division Bench of the Tribunal was in respect of the one of the co-noticee i.e. Samtel Colour Ltd. Respectfully following the said order of the Division Bench, not found any merit in the appeals of revenue as regards the dropping of the proceedings by the Commissioner (Appeals) on this account. As regards, the Revenue s appeals against the setting aside the penalties by the Commissioner (Appeal) on other people, I find that the penalty has been imposed under the provisions of Rule 209A of the Central Excise Rules, 1944. The Commissioner (Appeal) has correctly came to the conclusion that provisions of Rule 209A are not applicable in this case to the limited companies and hence the order setting aside the penalties under Rule 209A is correct and does not require any interference. Accordingly, the appeals filed by the appellant i.e. Monika Electronics Limited - Appeal and Onida Saka Ltd.- Appeal are allowed with consequential relief, if any and appeal filed by the revenue are rejected. - Shri M.V. Ravindran, J. REPRESENTED BY : Shri R. Santhanam, Advocate, for the Appellant. Shri S.L. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he issue in these two cases are squarely covered by the decision of the Hon ble High Court of Delhi in the case of Asahi India Safety Glass Limited v. Union of India as reported at 2005 (180) E.L.T. 5 (Del.). 4. The Learned DR, on the other hand submits that the availment of Modvat credit is always related to the utilization of the input in the manufacturing of the final product. Since in both these cases, the appellants have not utilized the inputs in the manufacturing of their final products, they should not be permitted to avail Modvat credit. It is his submission that since the Modvat inputs in these cases are relatable directly i.e. one to one co-relation is possible, the credit of colour picture tube/front - back covers of the colour televisions which are rejected on line were not utilised, hence no Modvat credit is eligible. As regards the demand of the duty on the inputs which were sent out by the appellants under Rule 57F(4) of the Central Excise Rules, 1944, it is his submission that the picture tube which were sent out by the appellant to the original manufacturer under Rule 57F(4) did not come back repaired but what they received were new picture tubes. Since there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sentative of the manufacturer of CPT in the factory of appellants and if the defect is somewhat major, the said picture tube is kept aside as rejected and kept out of the manufacturing process. If that be so, it can be considered, the said colour CPTs/front-back covers of the colour televisions are nothing but rejection on shop floor. Central Excise Rule 57D of Central Excise Rules, 1944 categorically covers these kind of situations :- 57D. Credit of duty not to be denied or varied in certain circumstances. - (1) Credit of specified duty shall not be denied or varied on the ground that part of the inputs is contained in any waste, refuse, or by-product arising during the manufacture of the final product, or that the inputs have become waste during the course of manufacture of the final product, whether or not such waste or refuse or by-product is exempt from the whole of the duty of excise leviable thereon or chargeable to nil rate of duty or is not specified as a final product under Rule 57A. 7. I find that the issue in this case is squarely covered by the provisions of the Central Excise Rules, 1944 as reproduced above. The Revenue s case in denial of Modvat credit to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .I. Tripathi, (1993) 201 ITR 611 that finality clause contained in Section 245-I of the Income-tax Act, 1961 in relation to orders of the Settlement Commissioner under Section 245D(4), does not and cannot bar the jurisdiction of High Courts under Article 226 of the Constitution of India or the jurisdiction of the Supreme Court under Article 32 or under Article 136 and it remains the same i.e. to consider whether the order of Settlement Commission is contrary to the provision of the Income-tax Act and if so and whether it has prejudiced the petitioner. This of course, apart from the ground of bias or malice which constitute an independent and separate category. At page 622 the Court after examining the scheme in detail has pointed out that it is true that finality clause contained in Section 245-I does not and cannot bar the jurisdiction of the High Court under Article 226 or the jurisdiction of this Court under Article 32 or Article 136 as the case may.be . The Court also examined that the order of Commission is in the nature of package deal and it may not be possible to dissect its order and that the assessee should not be permitted to accept what is favourable to him and reject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use-notices for different periods were issued to them way back in the year 1994. But the then Collector of Central Excise, Meerut dropped the proceedings by holding that the allegations did not stand proved from the bald fact that they did not mention the identification mark/Sl. No. on the CPTs sent back by them after repair to the company appellant No. 1. That order of the Collector was upheld by the Tribunal also and the same is reported in 2001 (135) E.L.T. 288 (Tribunal) = 2000 (41) RLT 333. In the face of that order, it is legally not permissible to accept those very allegations against the appellant No. 2 of having not repaired the defective CPTs received from the company appellant No. 1, but replaced the same with new ones by clearing the same from the factory without payment of duty. 10. It is also worthy to note that no DEMAND of duty has been raised against company appellant No. 2 on the ground of having cleared new CPTs in the guise of defective repaired CPTs, to the company appellant No. 1 during the period in dispute. If the allegations of the Department are to be accepted, then they must have raised duty demand against them. As observed above earlier show cause no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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