TMI Blog2016 (4) TMI 284X X X X Extracts X X X X X X X X Extracts X X X X ..... lacs which the respondents had taken out in the year 1994. Thus, the Tribunal has taken a correct view in the matter and allowed the said credit to be taken in the CENVAT account of the respondent. Also, sub-rule (7) of Rule 57H has been brought into force, as stated on enquiry by learned counsel for the Revenue itself, on 1.3.1997 and thus the same was not at all in existence on 1.1.1997 when the respondents had opted out of the Modvat credit. In the circumstances, it is not at all open for the appellant to place reliance upon the said rule for denying the benefit of the input credit lying in the Account of the respondent on the basis of the said sub-rule. - Misc. Appeal No. 754 of 2010 - - - Dated:- 25-2-2016 - Ramesh Kumar Datta A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Collector, Central Excise, Patna passed his order dated 15.10.1992 confirming the demand raised by the show cause notice dated 8.1.1992 and also imposing penalty of ₹ 2,00,000/-. The respondent was also directed to submit a detailed chart of stock of inputs, etc. The respondent aggrieved by the said order approached the Customs, Excise and Gold (Control) Appellate Tribunal, ERB, Kolkata which, by the order dated 20.04.1993, set aside the order of the Collector in so far as the duty and penalty was concerned and further directed the Collector to evolve a suitable method for estimating the quantum of credit to be expunged based on the inputs used and to take a final decision after additional data is made available by the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sposed of by order dated 31.5.1996 remanding the matter to the Assistant Commissioner. The dispute continued with several rounds of litigation between the respondent and the Department with regard to utilization of the unutilized input credit amount and the determination of the mode and procedure in regard to determination of input credit, etc., during which there was status quo also as a result of which the respondent could not utilize the amount. The respondent again prayed before the authorities to decide the matter regarding the unutilized credit amount of ₹ 98,95,422.22 which was ultimately decided by order dated 12.1.2001 of the Deputy Commissioner directing the respondents to reverse the amount of ₹ 24,82,488. The resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, it held that the respondent had suffered on account of inaction of the Revenue and had earned input credit which remained disputed, for which he should not be made to suffer. Accordingly, it allowed the appeal of the respondent and permitted it to take credit in the CENVAT account and utilize the same for payment of duty. Aggrieved by the same, the Revenue is before this Court in the present appeal. The principal stand of learned counsel appearing for the Excise Department in the appeal is that the respondent had opted out of the Modvat Scheme on 01.01.1997 and thus by the operation of Rule 57H (7) of the Central Excise Rules, 1944, the amounts would lapse and cannot be allowed to be utilized for payment of duty on any excisable goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s thus submitted that the Tribunal has taken an entirely correct view in the matter and issued the above directions. On a consideration of the facts and circumstances of the case as stated in detail in the order of the Tribunal and also documents brought on the record to substantiate its case by the appellant-Revenue before us, it is evident that the non-utilization of the input credit were solely on account of the pending dispute between the parties which had arisen due to the failure of the Excise authorities to come up with a proper procedure in the matter of utilization of input credit coupled with the restraint order as a result of which the respondent could not utilize the said amount and the same continued to remain lying in it s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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