TMI Blog2009 (8) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... r (T) REPRESENTED BY : Shri S. Ignatius, Advocate, for the Appellant. Smt. R. Bhagya Devi, SDR, for the Respondent. [Order per : P. Karthikeyan, Member (T)]. - M/s. Tamil Nadu Petroproducts Ltd. (TPL) availed Modvat credit of Rs. 28,11,630/- on 20-1-2000 based on a certificate dated 25-11-1999 issued under Rule 57E of the erstwhile Central Excise Rules, 1944 (CER) to M/s. Madras Refineries Limited (MRL). The certificate pertained to differential duty paid by MRL on clearances of kerosene to TPL made during the period 1-3-1994 to 31-7-1998. The Range Officer withdrew the certificate vide his letter dated 4-2-2000. A Show Cause Notice was issued to TPL, adjudicating which the original authority disallowed the credit to the extent of Rs. 19,45,363/- on the ground that MRL had short paid the said amount on clearances of kerosene to TPL by suppression of facts. He allowed balance amount of credit of Rs. 8,66,267/-. The original authority held that as per sub-rule (2) of Rule 57E of CER, certificate under Rule 57E was not to be issued in cases where the additional amount of duty became recoverable from the manufacturer of inputs on account of short levy or non-levy by re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. [2007 (210) E.L.T. 178 (S.C.)] In this judgment, the Apex Court held that the right to claim Modvat credit existed only in Rule 57A. Rule 57E was a procedural provision which dealt with adjustment in duty credit. Rule 57E did not affect the substantive right of the manufacturer of the specified final product to claim Modvat credit for the duty paid on the inputs subsequent to the date of the receipt of those inputs (the Apex Court dealt with disputed entitlement to differential duty paid during 21-4-86 to 2-4-87 denied by the department on the ground that Rule 57E had undergone an amendment with effect from 15-4-87). (c) CCE, Chennai v. Dunlop India Ltd. [2003 (158) E.L.T. 115 (Tri.-Chennai)] In this case the Tribunal held that an amendment to Rule 57E came into effect on 1-3-97 and the amendment specifically mentioned that it came into effect with immediate effect. The amendment could not be interpreted to mean that it had retrospective effect. The Tribunal rejected the contention of the Revenue that non-issuance of Rule 57E certificate in case of clandestine removal had been effective not from 1-3-1997 but from the inception of the provision. (The Revenue had sought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said right was to be enforced. Hence the amendment operated prospectively. The apex Court rejected the contention of the appellant therein to the effect that the amendment to Rule 57G of CER had no retrospective effect. The Apex Court dismissed the appeal and held that the Rule operated prospectively. In National Engineering Industries v. CCE [2005 (188) E.L.T. 471 (S.C.)], the apex Court had held in the context of applicability of Section 11B of the Act that the law prevailing when the refund claim was taken up had to be applied. This finding rejected the claim that during the currency of Notification No. 198/76-CE dated 16th June, 1976 the notification benefit could be availed at the end of the year as the same had to be worked out with reference to base clearances and excess clearances and that at that time Rule 173-I of CER had not contemplated any refund claim but automatic adjustment in the account of the assessee. 4. We have carefully considered the case records and the submissions made by both sides. MRL had cleared kerosene during the period 1-3-1994 to 2-7-96 without paying full duty due by suppression of material facts. MRL paid the differential duty consequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the supplier-manufacturer had to forego the benefit. Sub-rule (3) of Rule 57E operates prospectively and there is no indication, explicit or implicit, in the language of the sub-rule to suggest it applied retrospectively. As rightly pointed out by the ld. SDR, in National Engineering Industries case (supra), relying on the judgment of MRF Ltd. v. CCE reported in 2004 (164) E.L.T. 383 (S.C.), the apex Court had upheld the claim of the Revenue that the law prevailing at the relevant time had to be applied in dealing with the refund claim. Their lordships did not hold that the relevant law was that which prevailed at the time when the assessee became entitled to the refund claimed. We are not impressed with the argument of the ld. Counsel that the communication of the Range Superintendent issuing or cancelling the 57E certificate is a quasi-judicial act and, to cancel the certificate, the competent authority had to follow the review proceedings in terms of Section 35 of the Act. If this interpretation is to be accepted, any communication of decision or order of a superior authority by the Range Superintendent cannot be altered without following the procedure as suggested by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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