TMI Blog2012 (9) TMI 817X X X X Extracts X X X X X X X X Extracts X X X X ..... the lethargy of the department in not bringing to the notice of the Tribunal and the Larger Bench of the Tribunal the notification that was issued as far as back in the year 1996. It is time that appropriate steps are taken and a responsibility be fixed on the concerned officials and the officials will keep in mind the circular issued by the Board and pass orders in terms of the circular and not play hide and seek game with the judicial authority which is evident in this case. - C.E.A. No. 10 of 2008 - - - Dated:- 16-8-2011 - N. Kumar and Ravi Malimath, JJ. REPRESENTED BY : M/s. Chander Kumar Associates, Advocates, for the Appellant. Shri N.R. Bhaskar, Advocate, for the Respondent. [Judgment per : N. Kumar, J.] The assessee has preferred this appeal challenging the order passed by the Tribunal holding that the assessee is ineligible to avail Cenvat credit as the said Cenvat credit was availed after a lapse of six months of the date of issue of bill of entry following the decision of the Larger Bench on a reference to it on the aforesaid question of law. 2. The assessee M/s. Mangalore Refinery and Petrochemicals is a public sector undertaking being the subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee assailing the impugned order contended that sub-rule (5) of Rule 57G of the Central Excise Rules, 1944 (for short hereinafter referred to as the Rules ) speaks of 6 months from the date of issue of any document specified in sub-rule (3) as the period of limitation. Therefore, the condition precedent for application of the said Rule is it should be from the date of issue of any document. The document referred to under sub-rule (3) except the Bill of Entry are the documents which are issued by the seller. In the case of Bill of Entry it is the purchaser-assessee who files the said document and therefore the said period has no application to the bill of entry. Consequently he contended that in the case of Bill of Entry after the Bill of Entry is filed with the customs authorities under Section 46 of the Customs Act, 1962, on receipt of such Bill of Entry the authority after examination and deciding the duty if any eligible on such goods shall be assessed and thereafter the said Bill of Entry is returned to the purchaser/assessee for payment of duty. It is only after the assessee-purchaser pays the duty as assessed the authority, pass an out of charge order and hand over the trip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Modvat Credit of CVD paid on imported inputs cleared for home consumption, a Bill of Entry for warehousing is involved. Therefore, what is to be seen is the procedure in relation to Bill of Entry for home consumption. 8. Before the present EDI system was introduced, a Bill of Entry was required to be filed in quadruplicate by or on behalf of the importer and the proper officer of Customs would, after assessment of the duty on the goods covered by the document make an order known as out-of-charge order . In sub-section (1) of Section 47 of the Customs Act, permitting clearance of goods for home consumption could be made, if he was satisfied that the goods entered under Section 46 for home consumption were not prohibited goods and the importer had paid the duty assessed thereon and any charges payable under the Act in respect of the goods. Ultimately the importer would receive the triplicate copy of the Bill of Entry alongwith the out-of-charge order and would retain the same. This copy of the Bill of Entry carries the dates of filing, assessment, payment of duty, examination (second check) and out-of-charge order. Upon assessment of duty by the proper officer, the tripli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Customs to the importer. 10. Sub-rule (5) of Rule 57G providing for a period of six months from the date of issue of any document specified in sub-rule (3) for the purpose of availment of input duty credit must be held applicable to the credit of CVD paid on imported goods cleared for home consumption, which payment is evidenced by triplicate copy of Bill of Entry or duplicate copy of Bill of Entry as the case may be. Ultimately they construed the limitation provision of sub-rule (5) of Rule 57G in relation to Clauses C and K of sub-rule (3) of the Rule in a manner consistent with the overriding provisions of Section 47 of the Customs Act and accordingly they held that the triplicate copy of Bill of Entry specified in Clause C of sub-rule (3) of Rule 57G and a duplicate of Bill of Entry specified in Clause K of the said rule or documents issued to the importer of input by the proper officer of Customs is in terms of Section 47 of the Customs Act and the relevant subordinate legislation under the Act . 11. It is the correctness of this finding with which we are concerned in this appeal. Rule 57G which deals with the procedure to be observed to the manufacturer reads ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted on Electronic Data interchange System installed in any Customs or Central Excise Commissionerate; (l) a certificate issued by the Superintendent of Central Excise or by the proper officer in the Customs area under Rule 57E; and (m) an invoice issued by a manufacturer of final products under sub-rule (3) of Rule 57F or sub-rule (1) of Rule 57S. Explanation. - for the purpose of this section : (i) first stage dealer means a dealer who purchased the goods directly from : (a) the manufacturer under the cover of an invoice issued under Rule 52A or Rule 100E or from the depot of the said manufacturer or from any other premises from where the goods are sold by or on behalf of the said manufacturer, under cover of an invoice issued under Rule 57G; or (b) an importer or from the depot of an importer or from the premises of the consignment agent of the importer, under cover of an invoice issued under Rule 57G. (ii) second stage dealer means a dealer who purchases the goods from a first stage dealer. (4) No credit shall be taken by the manufacturer in respect of invoices referred to in clause (g) of sub-rule (3) after the 30th September, 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same. After such examination and testing, the duty if any levyable on such goods is assessed. Thereafter the stage of clearance of goods for home consumption is arrived at, which is provided in Section 47 of the Act which reads as under : (1) Where the proper officer is satisfied that any goods entered for home consumption are not prohibited goods and the importer has paid the import duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance of the goods for home consumption. (2) Where the importer fails to pay the import duty under sub-section (1) within seven days from the date on which the bill of entry is returned to him for payment of duty, he shall pay interest at such rate, not below ten per cent. and not exceeding thirty per cent, per annum, as is for the time being fixed by the Board, on such duty till the date of payment of the said duty : Provided that where the bill of entry is returned for payment of duty before the commencement of the Customs (Amendment) Act, 1991 (55 of 1991) and the importer has not paid such duty before such commencement, the date of retur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed inputs or the date of filing bill of entry. Clarification : The period of 6 months should be computed from the date of payment of duty. Point-5 What should be the date for computing 6 months period to avail the Credit under Rule 57G where- (i) Transporter s copy of the invoice is lost and the credit is permitted after a period of 6 months. (ii) Credit is taken under Rule 57E of duty paid on a date after 6 months of duty paid originally. Clarification : (i) (ii) 6 months period may not apply in such cases as restriction of 6 months is applicable only to those cases where the assessee himself takes/avails the credit. It would be however appropriate to take credit in such cases within 6 months of the date of permission given by the Assistant Commissioner on the strength of original copy (where duplicate copy is lost). Similarly credit can be taken within 6 months of the date of issue of certificate under Rule 57E by the Range Superintendent. 17. Therefore, the department understood these provisions insofar as the Bill of Entry is concerned as six months from the date of payment of duty. This circular is binding on the revenue. In the light of the circular the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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