TMI Blog2015 (12) TMI 1447X X X X Extracts X X X X X X X X Extracts X X X X ..... l to the case. The non-compliance of the said Rule would not disentitle the respondent from availing the Modvat credit having deposited the countervailing duty as prescribed under the Rules. The Tribunal having accepted this contention and following the law laid down by the Apex Court in the case of Commissioner of Customs (imports) -vs- Tullow India Operations Ltd. [2005 (10) TMI 502 - SUPREME COURT OF INDIA] has given a finding that the denial of Modvat credit to the appellant on the ground that KSFC has not furnished the required certificate would result in gross miscarriage of justice - cost of the capital goods shall be reduced by the amount of duty to excise in respect of which a claim of credit has been made and allowed under the Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed against the respondent denying Modvat credit of Countervailing Duty of ₹ 15,39,877/- for not furnishing the requisite certificate/documents from KSFC in accordance with the provisions of Rule 57R of the Rules. The respondent filed objections contending that there was some dispute between KSFC and the respondent, as such, KSFC has not issued the Certificate, availing Modvat by the respondent was already informed to KSFC, in the circumstances, the KSFC cannot claim depreciation on the amount representing countervailing duty in view of Explanation 9 to Section 43 of the Income Tax Act, 1961, introduced retrospectively with effect from 01.03.1994. However, the Original Authority proceeded to pass an order denying the Modvat credit besi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redit of the specified duty paid on the capital goods shall be allowed to a manufacturer if the capital goods are acquired by the manufacturer on lease, hire-purchase or loan agreement from a financing company subject to the following procedure, namely :- (i) xxxx (ii) The manufacturer availing credit of the specified duty paid on capital goods, who has entered into a financial arrangement, - (a) xxxx (b) for financing the cost of such capital goods including the specified duty, shall produce a certificate from the financing company to the effect that the duty specified on such capital goods has been paid by the said manufacturer to such financing company, prior to payment of first lease rental installment or first h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Modvat credit to the appellant on the ground that KSFC has not furnished the required certificate would result in gross miscarriage of justice. Paragraph-28 of the said judgment reads thus: 28. The conditions referred to in sub-section (1) of Section 25 as regards time when such certificate is to be produced would, thus, mean those which were within the control and power of the importer. If it is not within the power and control of the importer and depends upon the acts of other public functionaries, non-compliance with such condition, subject to just exceptions cannot be held to be a condition precedent which would disable it from obtaining the benefit therefrom for all times to come. 7. In view of the said judgment rendered ..... X X X X Extracts X X X X X X X X Extracts X X X X
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