9911796707
TMI Blog2010 (4) TMI 936X X X X Extracts X X X X X X X X Extracts X X X X ..... l the disposal of this writ petition; (v) issue any other writ, order or direction which this Hon'ble Court may deem fit and proper under the circumstances of the case; (vi) and to award the cost of this writ petition to the petitioners." 2. The brief facts giving rise to the present petition are that the petitioner is engaged in the manufacture of Plastic Films, Flexible Plastic Packaging Material and Gravure Printing Cylinders falling under Chapters 39 and 84 of the Central Excise 'Tariff Act, 1985. The manufactured commodity is liable to Central Excise Duty. The petitioner was also entitled for Modvat credit on the inputs and capital goods used in the manufacturing of final products in accordance to the rules. The petitioner has claimed Modvat credit on High Speed Diesel Oil (hereinafter referred to as 'HSD oil') falling under Chapter 27 of the Central Excise Tariff Act, 1985 from March, 1997, after the insertion of Rule 57B with effect from 1-3-1997. The Modvat Credit has been availed on the ground that HSD oil was being used for generation of electricity or steam, used for the manufacture of final products, within the factory premises. The petitioner was served with the sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... along with interest, which is impugned in the present petition. 6. Heard Sri A.P. Mathur, learned counsel for the petitioner, and Sri S.P. Kesharwani, learned Senior Standing Counsel. 7. Sri A.P. Mathur, learned counsel for the petitioner, submitted that the apex Court in the case of Commissioner of Central Excise, Hyderabad v. Associated Cement Companies Ltd. reported in 2003 (151) E.L.T. 12 (S.C.) has held that HSD oil used as fuel for generation of electricity used in the manufacture of cement is eligible to Modvat credit prior to the amendment of Rule 57B on 2-3-1998. The Apex Court held that unamended Rule 57B leaves no doubt on the issue in question. It provides that notwithstanding anything contained in Rule 57A the manufacturer of final product shall be allowed to take credit of the specified duty paid on the goods used for generation of electricity or steam used for manufacture of final product or for any other purpose within the factory of production. Therefore, he submitted that the Modvat credit on HSD oil was admissible under the existing Rule 57B during the relevant period. He, however, submitted that subsequently the apex Court has allowed the review application, f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent case the petitioner has failed to establish both the conditions. He further submitted that the petitioner has not laid down the factual foundation for assailing the validity of the statute. Therefore, the contention of the petitioner about the validity of Section 112 is liable to be rejected. He submitted that it is settled principle of law, as laid down by the Apex Court that there is a presumption of validity of the provision, unless otherwise shown. In support of the contention he relied upon the following decisions : (1) 2007 (6) SCC 236 - paras 83, 84 & 85, (2) AIR 1975 SC 1234 - Para 20, (3) AIR 1951 SC 41 - para 10, (4) AIR 2001 SC 724 - para 9, (5) AIR 1959 SC 1002 - para 14, (6) AIR 1962 SC 955 - para 26, (7) AIR 1997 SC 1511 - para 18, (8) JT 2006 (12) SC 121 - para 56, and (9) AIR 1981 SC 2138 - para 8. 9. He further submitted that the Legislature has a power to enact any provision with retrospective effect. The Legislature is competent to en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r other authority of any decree or order allowing such credit of duty as if the provisions of sub-section (1) had been in force at all material times; (b) recovery shall be made of all the credit of duty, which have been taken or utilised but which would not have been allowed to be taken or utilised, if the provisions of sub-section (1) had been in force at all material times, within a period of thirty days from the date on which the Finance Act, 2000 receives the assent of the President and in the event of non-payment of such credit of duty within this period, in addition to the amount of credit of such duty recoverable, interest at the rate of twenty-four per cent. per annum shall be payable, from the date immediately after the expiry of the said period of thirty days till the date of payment. Explanation. - For the removal of doubts, it is hereby declared that no act or omission on the part of any person shall be punishable as an offence which would not have been so punishable if this section had not come into force." Under the aforesaid section, Modvat credit on HSD oil was not admissible at any time during the period commencing on and from 16th day of March, 1995 and ending ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
