TMI Blog2013 (7) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... was claimed beyond the period of six months was not justified. - Decided against the Revenue. - C.E.R. No.59/2000 - - - Dated:- 2-5-2013 - Krishn Kumar Lahoti And Vimla Jain, JJ. For the Appellant : Shri Anoop Nair, learned counsel For the Respondent : Shri Prasad Paranjape and Shri Satish Agrawal JUDGEMENT:- This is an application filed by the Commissioner, Central Excise, Bhopal under Section 35(H) of the Central Excise Act, 1944 for issuance of a direction to the Customs, Excise Gold (Control) Appellate Tribunal, New Delhi for referring the matter to the High Court on the question raised in the application for its opinion. The question of law that has been raised in the application by the Revenue reads thus: "Whether in the facts and circumstances of the case, the Tribunal is correct in holding that provisions of Rule 57G cannot be applied to the case covered by Rule 57H of the Central Excise Rules, 1944 ? Before considering the aforesaid prayer it would be appropriate to illustrate the factual position in the present case. The respondent, M/s Raymonds Ltd. Sausar was engaged in the manufacturing of Man Made Yarn, falling under sub-heading No.5513.29 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yond the period of six month from the date of issuance of documents. Being aggrieved by the aforesaid order the Revenue has filed this application before this Court with the prayer that the question of law is involved in this case and the Appellate Tribunal may be directed to refer the matter to the High Court for deciding the aforesaid question. Shri Anoop Nair, learned counsel appearing for the Revenue submitted that in the case second proviso of Rule 57G of the Rules is applicable, which provides that such modvat credit could have been claimed within the period of six months from the date of issuance of the documents on which the modvat credit was claimed and if the claim was made beyond the period of six months, the Assessing Officer was right in rejecting the claim of the respondent for modvat credit. Shri Prasad Paranjape, learned counsel appearing for the respondents supported the order passed by the Tribunal and submitted that from a bare reading of both the provisions of Rules 57G and 57H of the Rules, it is clear that Rule 57G of the Rules provides the situation in which an assessee had already claimed modvat credit. The second proviso was inserted with effect from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g in a factory, customs area (as defined in the Customs Act, 1962 (52 of 1962)] or a warehouse as or clearly recognizable as being non-dutypaid, may be deemed to be duty-paid and credit of duty in respect of the said inputs may be allowed at such rate and subject to such conditions as the Central Government may direct, without production of documents evidencing the payment of duty. Provided also that the manufacturer shall take all reasonable steps to ensure that the inputs acquired by him are goods on which the appropriate duty as indicated in the documents accompanying the goods, has been paid. (2A) Notwithstanding anything contained in sub-rule (2), a manufacturer can take credit of the inputs received in the factory on the basis of the original invoice, if the duplicate copy of the invoice has been lost in transit, subject to the satisfaction of the [Assistant Commissioner]. xx xx xx xx xx xx Provided further that in respect of a manufacturer availing of any exemption based upon the value or quantity of clearances in a financial year, the provisions of this sub-rule shall have effect in that financial year as if for the expression "month", the expressio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f duty.] [Explanation.- For the purpose of this subrule," composite mill" means a manufacturer, who is engaged in the processing of fabrics, with the aid of power alongwith spinning of yarn from fibres and weaving or knitting or crocheting of fabrics within the same factory]. xxx xxx xxx xxx xxx xxx (5) Where a manufacturer who ops for exemption from the whole of the duty of excise leviable on goods manufactured by him under a notification based on the value or quantity of clearances in a financial year, and whole has been availing of the credit of the duty paid on inputs before such option is exercised, he shall be required to pay an amount equivalent to the credit, if any, allowed to him in respect of inputs lying in stock or used in any finished excisable goods lying in stock on the date when such option is exercised and after deducting the said amount from the balance, if any,lying in his credit, the balance if any, still remains shall lapse and shall not be allowed to be utilised for payment of duty on any excisable goods, whether cleared for home consumption or for export.]" The second proviso of Rule 57G of the Rules specifically provides that the manuf ..... 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