9911796707
TMI Blog2008 (2) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... nd found, that the assessee was availing Modvat Credit on aluminium plates, falling under sub-heading 7606.10 of the Central Excise Tariff Act, 1985 on the central excise gate passes, issued by M/s. Padmavati Metal Industries and M/s. Prakash Metal Works, both of Ahmedabad. These units issued gate passes in the name of M/s. P.G. Foils Ltd. which later on endorsed the same in favour of the assessee. The visiting officers physically verified the article, and noticed, that the inputs did not fit within the definition of "aluminium plate" given in the Chapter note 1(d) of Chapter 76 of Central Excise Tariff Act, 1985. These articles were claimed by the assessee to be used as input (excise duty paid input) and the assessee was claiming Modvat Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... central excise duty, amounting to Rs. 65,44,206.90 against the assessee respondent, and a penalty of Rs. 5 lacs was also imposed under Rule 173Q(1)(bb). 4. This order was challenged by the assessee by filing appeal before the Customs, Excise & Gold (Control) Appellate Tribunal, which was decided vide final order dt. 8.11.2000, Annexure-4. The learned Tribunal found, that the IVth proviso the Rule 57-G(2) prescribes, that the manufacturer should take all reasonable steps to ensure that the inputs acquired by them are goods on which the appropriate duty as indicated in the documents accompanying the goods have been paid. It was also considered, that the learned Collector has considered, that the classification showed in the paying doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e expert opinion report, given after chemical examination of the substance, that the input found was unwrought aluminium, and did fall under sub-heading 7601.90, and simply because the assessee got it under the documents from M/s. P.G. Foils, which in turn had purchased from M/s. Padmavati Metal Industries and M/s. Prakash Metal Works, describing it as aluminium plates, is not enough to entitle him to claim Modvat credit, as the requirement of Rule 57G specially IVth proviso is, that the assessee should take all reasonable steps to ensure, that the inputs acquired by it are the goods on which the appropriate duty is paid. 7. On the other hand, learned counsel for the respondent submitted, that since it is not in dispute that the inpu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee claimed to have availed the Modvat credit under Rule 57G under valid GP-1s issued by the Ahmedabad units, on the strength of approved classification list, while the Department had not adduced any evidence, that the material received from the Units of Ahmedabad was disposed off, and other material was purchased, and the goods were not the one described in the GP-I. Then, notices were also given to M/s. Prakash Metal Works and M/s. Padmavati Metal Industries, who submitted their written reply, contending that they cleared the input classified and approved by the Department under sub-heading No. 7606.10. Likewise, M/s. P.G. Foils in its reply also submitted that they were aware of the deemed definition of aluminium plates given in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the classification of the goods was incorrect. As against this, when it being nobody's case, and without there being any material in this regard, the last line of para-18 holds, that the assessee had not bought the goods from these parties, and what overall impression the order of the learned Collector creates is, that it is precisely on this basis, that the assessee had been held liable, while the other three parties have been exonerated. 11. In our view, when the other three parties have been exonerated, by recording a positive finding, that it cannot be said that all the three parties had willfully entered any wrong particulars in the gate passes issued for the goods removed by them, with intent to facilitate the buyer to avail of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to say, that when the suppliers have been exonerated, conceding any right, as claimed by the Department, in this matter, would indirectly amount to allowing them to assail the correctness of the classification of the concerned jurisdictional authorities, who had duly certified the goods at the time of excise clearance by the manufacturers/suppliers, from whom the assessee had purchased the goods, and that right cannot be conceded under the scheme of things, under the Act. 13. Thus, in our view, no such question is involved, which may require adjudication, regarding the rate of duty of the excise on the value of the goods, for the purpose of assessment, so as to persuade us to call for the reference, to refer any question of law, arising f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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