TMI Blog2015 (12) TMI 737X X X X Extracts X X X X X X X X Extracts X X X X ..... s binding and there is no escape from the same. Appellants themselves treated the period from 01.03.1987 onwards as distinct would go to show that the declaration filed on 07.07.1992 is only restricted to their claim for availing MODVAT credit on felts and wires treating them as inputs, especially in the light of the order of the Tribunal in Straw Products Ltd., case (1991 (10) TMI 139 - CEGAT, CALCUTTA ). In other words, the claim of the appellant in the letter dated 07.07.1992 is limited to claim a MODVAT credit from and with effect from 07.07.1992 which came to be denied initially by the authorities and subsequently allowed by the Tribunal setting aside such denial. Thus, making the appellant entitle for the input credit with effect from 07.07.1992. The entire proceedings never dealt with the claim of the appellants for MODVAT credit for the period 29.07.1987 to 09.07.1992. Merely because the dates have been mentioned in the claim petition in the letter dated 07.07.1992 it cannot be presumed that the same was in issue before the authorities and adjudicated upon. - order of the Tribunal does not call for any interference and the same is in order - Decided against the assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erboards and paper products. During the years 1987 to 1992, in terms of Rule 57G of the Central Excise Rules (in short the Rules), the appellant filed a declaration on 29.07.1987 seeking to avail MODVAT credit on certain inputs viz., felts, wires, dandy rolls, chipper knives and doctor blades. The Assistant Commissioner refused the same by his order dated 23.02.1988. The said order was challenged by the appellant before the Commissioner (Appeals), Madras, and the same came to be rejected vide Order dated 31.08.1988 in Appeal No.254 of 1988. The appellant further carried the matter before the CEGAT, Madras, and the same also came to be dismissed on 22.11.1991 in Final Order No.643 of 1991. The orders of the CEGAT dated 22.11.1991, rejecting the claim of the appellant for availing MODVAT credit on inputs, became final. It may be mentioned here that in the process of appeal the input credit came to be restricted only on felts and wires. In the present appeal, we are concerned only with respect to input credit on felts and wires. The Tribunal rejected the appeal based on its earlier order in the case of Andhra Pradesh Paper Mills Ltd. Vs CCE 1990 (50) ELT 252, deciding identical case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice dated 04.09.1997. Further appeals filed by the appellant before the Commissioner (Appeals) and the CEGAT came to be dismissed, confirming the order dated 19.05.1998 of the Assistant Commissioner. In the above fact-situation, the present appeal is filed by the Appellant questioning the orders of the Tribunal dated 06.09.2004 raising the questions of law set out supra for consideration of this Court. 4. Smt. M.Bhaskara Lakshmi, learned Senior Counsel submits that by virtue of the orders dated 18.10.1996 of the CEGAT, the entitlement of the appellant for availing MODVAT credit on inputs viz., felts and wires came to be confirmed. Thus, the declaration filed by the appellant on 07.07.1992, which resulted in order dated 03.06.1994 rejecting the claim of the appellant for availing the MODVAT credit on account of the reversal of the said rejection order by the Tribunal holding that the appellant is entitled to avail MODVAT credit, became final, as there is no challenge to the same. The appellant in its declaration dated 07.07.1992, filed in the form of EA-3, specifically claimed input credit for the period from 29.07.1987 to 09.07.1992. The same was rejected by the Assistant Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r under Rule 57-I of the Rules, proposing to reverse the wrongful MODVAT credit availed. The same was adjudicated upon and the Tribunal found the same to be in order. There was never a claim made by the appellant seeking refund of the MODVAT claim, and the denial of which had become final by virtue of the orders of the Tribunal dated 22.11.1991. In other words, disentitlement of the MODVAT credit for the period from 29.07.1987 to 09.07.1992 became final, thereby the taking of credit by the appellant in February, 1997 became wrongful availment. The same came to be adjudicated upon under Rule 57-I of the Rules, which is the provision dealing with the cases of wrongful availment MODVAT credit. Rule 57-I of the Rules may be noticed. Rule 57-I (1) : Recovery of Credit wrongly availed of or utilized in an irregular manner: (i) Where credit of duty paid on inputs has been taken on account of an error, omission or mis-construction, on the part of an officer or a manufacturer, or an assessee, the proper officer may, within six months from the date of filing the return as required to be submitted in terms of sub-rule (8) of rule 57G, and where no such return as aforesaid is filed, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the duty cannot be recovered back nor can any claim for its refund be entertained. 9. We are also not impressed with the argument of the learned Senior Counsel with reference to the paragraph No.108 (viii) in the case of Mafatlal Industries case (supra) to the effect that the declaration or the law laid down in the Propositions (i) to (vii) above shall not however entitle the State to recover the taxes/duties already refunded and in respect whereof no proceedings are pending before any authority/Tribunal or Court as on this date. 10. The said observations made in the said paragraph are firstly in the context of interpretation of Sections 11A and 11B of the Act and further in the context of partly overruling the earlier judgment of the Supreme Court in STO Vs. Kanhaiya Lal Mukundlal Saraf 1959 SCR 1350=AIR 1959 SC 135 case. 11. As a matter of fact, the Larger Bench of Supreme Court had categorically held that any duty paid under mistake of law can be recovered only by resort to the provisions of Section 11B of the Act. In the present case though the petitioner in the letter dated 07.07.1992 had categorically stated that an independent application would be made seeking ref ..... X X X X Extracts X X X X X X X X Extracts X X X X
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