TMI Blog2007 (5) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... of admissible Modvat credit has to be taken in a single transaction or it could be taken in instalments as done by the respondents in the present cases and allowed by the Tribunal? 2. Whether, even if, it is held that such subsequent taking of short availed is permissible, the Tribunal was correct in allowing such subsequent taking of credit beyond a period of six months from the date of the original taking of credit or the Tribunal should have restricted the credit so taken subsequently to the amounts relating to the immediately pre ceding six months period? 3. Whether subsequent taking of originally short availed Modvat credit will constitute a refund claim and accordingly subject to the time limit restriction laid down under Section 11B of the Act? 4. Whether by filing the Gate Passes and RT-12 monthly returns the respondents can be said to have staked a claim at the original stage and hence the time limit of six months will not be applicable as held by the Tribunal?" 2. Briefly stated the facts giving rise of the present reference are as follows: The respondents are manufacturers of excisable good using duty paid inputs and availing Modvat credit of such duty paid i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R.T. 12 returns, the limitation period of six months will not be applicable. 3. We have heard Shri K.C. Sinha, learned Assistant Solicitor General of India appearing for the Revenue and Shri Pankaj Bhatia, learned Counsel appearing for the respondents. 4. At the outset it may be mentioned here that except the statement of case sent by the Tribunal there is no document on record. We are proceeding to decide the present Reference on the basis of the record available before us and on the basis of the arguments advanced by the learned Counsel for the parties. Shri K.C. Sinha submitted that even though during the relevant period there was no limitation provided under Rule 57A of the Central Excise Rules the time limit provided under Section 11B of the Act would be applicable and, therefore, any amount of Modvat credit which has been availed of falls short of the actual amount which could have been availed ought to have been taken credit of within six months and not beyond it. In support of his submission he has relied upon a Division Bench of the Gujarat High Court in the case of Wipro Ltd. v. Union of India [1992 (60) E.L.T. 370]. He submitted that as the period of six months ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n hand and the one which has to be dealt with under Rule 57-I, as it stood unamended, does not fall under any one of those contingencies provided for in Section 11A of the Act. Part AA of the Rules in which Rule 57-I is found included provides a special scheme for earning credit and adjustment of duty paid on excisable goods used in inputs in the manufacture of what is referred to as "final product, and thereby enable the manufacturer to utilize the credit so allowed towards payment of duty of excise leviable on the final products, in the manner and subject to the terms and conditions stipulated therein. The manufacturer, in this case while removing the final product manufactured has adjusted against payment of excise duty on such final product a part or portion of the credit earned by him under the special scheme and what is sought to be really and in substance done is to inform the manufacturer that the adjust merit he purported to have made was with an amount not legitimately or factually earned by or due to him. For this purpose, the irregularity and impropriety committed by the manufacturer in maintaining the accounts and the error in the calculation of the credit said to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances or specially in particular situations and not on the ground that one is a mere provision in the Act and the other is a provisions in the Rule. We are not also concerned in this case with any challenge to the in consistency of a rule with any statutory provisions in the Act. 15….The restricted operation of the provisions contained in Section 11A is found inherently in built due to the specification of the various categories of cases enumerated in the provision itself to be dealt with. The scheme of Modvat introduced for the first time in 1986 did not consider it necessary either to have its own period of limitation in built in the Rules nor has the enforcement of the scheme been made subject to Section 11A of the Act. The fact that even when an amendment was made on 6-10-1988, it was prospective in nature and the amendment was not given any retrospective effect indicates the intention unmistakably that the subsequent amendment should have no impart on the construction to be placed on the provisions as it existed before such amendment. The further fact that the amendments to Rule 57-I had its own pattern of limitation and method of computation of such limitation also woul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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