TMI Blog2000 (12) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... rpose of payment of Excise Duty. The Assistant Collector did not accept the petitioner's request and asked it to submit classification of HDPE/PP Tapes/Fabrics/Sacks as an article of textile under Chapter headings 54 and 63, respectively. Since the rate of duty under the two headings were different and also Modvat Credit facility was available only to articles of plastic, the petitioner-company vide its representation dated 8-5-1986 requested the Assistant Collector to ascertain the exact nature of the produce and give it a proper classification and till such time the petitioner agreed to be assessed provisionally as per the classification made by the Department. The aforesaid representation has been brought on record as Annexure P-1. The Departmental Authorities got the sample collected and the same was forwarded to the Chemical Examiner, Central Excise Revenue, Central Laboratory, New Delhi for ascertaining the classification. The Excise Department took no action to give proper classification to the product manufactured by the petitioner-company and insisted upon payment of duty under the head of 'Textiles'. On 26-5-1986 the petitioner-company sent a reminder to the Department se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect of inputs lying in stock immediately before the filing of declaration but received after 1-3-1987. The said sub-clause was again inserted by notification dated 25-7-1991 thereby conferring power on the Assistant Collector to allow credit both in respect of inputs lying in stock as well as inputs used in the manufacturing of final product. It is put forth by the petitioner that even though the company was entitled to the benefit of Modvat it could not avail the same on account of erroneous classification made by Excise Authorities. It also sought permission for filing a declaration to avail Modvat benefit, but the same was not allowed by the Department. While the petitioner was paying tax as a law abiding and sincere tax-payer other manufacturers of HDPE Woven Sacks/Tapes/Fabrics from Indore filed a writ petition before the Indore Bench of this Court seeking declaration that HDPE articles are classifiable under Chapter 39 of the Act and not under Chapters 54 and 63. This Court by order dated 7-11-1989 held that the articles are plastic, and therefore, classifiable under Chapter 39. After learning about the said judgment the petitioner filed a classification list classifying t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduct. As averred in the writ petition the claims of other manufacturers for credit of duty on processed and consumed inputs were also rejected by the concerned Assistant Collector. The manufacturers once again approached this Court by way of writ petition assailing the order of Assistant Collector rejecting their claims for credit of duty. This Court construing the various amendments in Rule 57H held that the claim of the petitioners therein cannot be denied, and accordingly, allowed the writ petition directing the Department to allow credit of duty paid on inputs to the petitioner. After the judgment delivered by this Court in M.P. No. 724/91 in the case of M/s. Gilt Pack Limited v. The Assistant Collector, Central Excise, Indore the petitioner preferred an appeal before the Collector (Appeals), Indore under Section 35A of the Act on the ground that the claims of the petitioner also deserves to be allowed in view of the judgment rendered by the High Court. The Collector (Appeals) by order dated 11-5-1994 rejected the petitioner's claim. Aggrieved by order passed by the Collector (Appeals) the petitioner preferred Writ Petition No. 2789/94 before this Court. At that point of time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court cannot be denied to the petitioner-company on the specious ground of non-existence of power or provision at the stage of dealing with the application. It is put forth that the petitioner made an application for filing such declaration which was refused by the excise authorities in illegal manner. On these grounds the petitioner has prayed for quashing of impugned orders, namely, Annexures P-15, P-18 P-20 dated 2-8-1993, 11-5-1994 9-3-1999, respectively. 5.A return has been filed by the contesting respondents contending, inter alia, that the petitioner had not paid the duty under protest and the charge of erroneous classification is totally incorrect. It is also put forth that if the petitioner was aggrieved by the Department's stand he could have filed an appeal as prescribed under the Central Excise Act. It has been urged that the petitioner had not challenged the classification duly declared by the petitioner and approved by the Department, and hence, cannot be permitted to challenge after a lapse of 10 years. It has also been set forth that the petitioner's claim under Rule 57H was rejected as the said provision had been amended during the material time. 6.Af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the factory after filing the declaration and also on such inputs which are already used in the manufacture of the final products and those final products are cleared from the factory on or after 1st March, 1987. As such when an argument is advanced that the inputs are not available for verification as they are not lying in stock, acceptance of such an argument would result in making the provision of second clause of Rule 57H nugatory. In the instant case the manufacturers have submitted the details of the inputs used by them for the manufacturer of the goods which were cleared by the Central Excise Authorities on 1-3-1987 and thereafter, till filing of the declaration. As there is no time limit for filing the declaration and there being no definition of the words "immediately before filing the declaration" it should be held that if the declaration is filed by the manufacturers claiming the credit, that declaration has to be considered in the light of the record available with the Central Excise Authorities. The order of the Assistant Collector is, therefore, quashed to that extent. Instead it is directed that the credit for the inputs used for manufacturing goods cleared from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of assessee as no account has been maintained. The Tribunal also distinguished the decision rendered in the case of Gilt Pack Ltd. (supra) on the ground that the Rule 57H is to be interpreted on the date of filing of declaration and in the instant case as sub-clause (ii) was not on the statute book on the date of filing of declaration as it was amended on 5-5-1989. The Tribunal further took note of the fact that the declaration was filed on 18-12-1989 and was acknowledged on 21-12-1989, and therefore, the benefit of Rule 57H was not available to the appellants therein. 10.Supporting the aforesaid orders Mr. R.S. Patel, learned Standing Counsel for the Union of India, has placed reliance on the decision rendered in the case of Collector of Central Excise, Kanpur v. Flock (India) Pvt. Ltd. - 2000 (120) E.L.T. 285 (S.C.) wherein the Apex Court held as under : - Coming to the question that is"10. raised there is little scope for doubt that in a case where an adjudicating authority has passed an order which is appealable under the statute and the party aggrieved did not choose to exercise the statutory right of filing an appeal, it is not open to the party to question the correctn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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