TMI Blog1994 (1) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... harm Pharmaceuticals by its Proprietrix against a similar order dated 8-2-1988 made by the Collector of Central Excise (Appeals). W.P. No. 9008 of 1988 has been filed by the said Medopharm represented by its partner against the order 8-2-1988 made by the Collector of Central Excise (Appeals). W.P. No. 9009 of 1988 has been filed by Managing Partner of Medopharm, against the order dated 8-2-1988 made by the Collector of Central Excise (Appeals). W.P. No. 9010 of 1988 has been filed by Medopharm Laboratories represented by its Proprietrix against the order dated 8-2-1988 made by Collector of Central Excise (Appeals). W.P. No. 10430 of 1988 has been filed by Medopharm Laboratories represented by its Proprietrix against the order dated 30-3-1988 made by the Collector of Central Excise. W.P. No. 10431 of 1988 has been filed by Medopharm Pharmaceuticals represented by its Proprietrix against the order dated 30-3-1988 made by the Collector of Central Excise (Appeals). W.P. No. 10432 of 1988 has been filed by Medopharm, a partnership firm, against the order of the Collector of Central Excise (Appeals) dated 17-5-1988. W.P. No. 10511 of 1988 has been filed by Alfred Berg Co. (I) Private L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dencing payment of excise duty on the inputs should be made available for inspection. It is the contention of the petitioners that they have been submitting such returns. It is stated that in respect of certain inputs purchased are also covered by gate passes. In respect of purchase of printed boxes. Polythene jars and corrugated boxes from various persons in the open market the necessary documents were not filed. The further contention is that paper and paper board which go into the manufacture of the Boxes and are excisable goods and they would have suffered excise duty at the time of removal from the factory. The dealers who make the boxes cannot be expected to have the gate-pass entry. Similarly, polythene jars are excisable goods and if these jars are purchased from a factory, then only gate-passes will be available. The petitioners contend that they purchased these goods (inputs) from dealers and not from manufacturers. The petitioners are small scale industries and they cannot directly buy from manufacturers. Therefore, they contend that only the available documents were produced before claiming the Modvat Credit. Long after the availing of the Modvat credit the respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 1, a Bill of Entry or any other document as may be prescribed by the Central Board of Excise and Customs (constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) in this behalf evidencing the payment of duty on such inputs." Form A.R. 1 is the application for removal of excisable goods on payment of duty. Rule 52-A says that no excisable goods shall be delivered from a factory except under a Gate Pass signed by the owner of the factory and countersigned by the proper officer. Mr. R. Krishnamoorthy learned Senior Counsel for the petitioners, submits that there is no nexus between the requirements of the proviso with the objects sought to be achieved under the Modvat scheme. According to him, requirements and the proviso are unreasonable and discriminatory. He further contends that there is a presumption that such goods, as are used by the petitioners as inputs, had already suffered excise duty. Further it is unreasonable to expect such small manufacturers to prove that the inputs had suffered excise duty under cover of a Gate Pass or A.R. 1 form to evidence the payment of duty on such inputs. The allegation of discrimination is based on a notification. Order No. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioners in respect of the relief sought for. Vapson Products v. U.O.I. [1987 (27) E.L.T. 608] relates to the satisfaction of the assessee of an exemption notification. It is with reference to the said notification that the Bombay High Court held that a customer who was purchasing the goods in the open market need not secure documents for establishing the actual payment of excise duty from the vendor. This judgment has been rendered in a totally different context and cannot be applied to the present case. FMC Stellal Ltd. v. CCE, Allahabad [1993 (44) ECR 215] a judgment of the Tribunal relates to the credit of inputs received during transitional period between 1-3-1986 to 31-3-1986. Rule 57H is a transitional provision which provides for allowing credit of duty paid on inputs received by a manufacturer immediately before obtaining the dated acknowledgement of the declaration made under Rule 57G provided certain conditions are satisfied. We are not concerned with such a case. Therefore, this decision does not advance the case of the petitioners. Auto Piston Manufacturing Co. Ltd. v. Collector of C. Ex. [1992 (60) E.L.T. 342] also relates to the goods covered by the deeming provision a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were substituted." The petitioners also rely on Section 11A of the Central Excises and Salt Act for the proposition that a demand for duty, short paid or not paid can be made within six months from the relevant date. The petitioners therefore, contend that the period of limitation runs from the date of filing the return. Therefore if at all the respondents could have made a demand only on or before 30-9-1986. This contention is met by the learned counsel for the respondents by referring to one of the impugned orders namely the order dated 27-10-1987 made by the Assistant Collector in W.P. No. 9006 of 1988. The following sentence is referred to :- "The R.T. 12s of M/s. Medopharm have been assessed provisionally pending verification of their MODVAT records (in support of the credits-token) which were not produced by them and pending finalisation of the classification list No.1/86-87." The authorities have therefore, held that since R.T. 12s have been assessed provisionally the contention that the issue is time barred was not acceptable. It is pointed out by the learned counsel for the respondents that this position is the same in all other writ petitions wherein a demand had b ..... 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