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TMI Blog2000 (10) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... e whole of the duty leviable thereon subject to a certificate from the laboratory in which the samples are tested showing that the samples have been destroyed in test. In respect of the quantity of the final product so removed for the purpose of testing on which no duty was paid, a demand was made for expunging the Modvat credit, that had been taken for the inputs used for manufactured the quantity of the cells which had been removed for testing on which excise duty had not been paid. The Tribunal which considered the claim of the assessee that it is not required to expunge the credit so taken, upheld the assessee's claim accepting the argument that under Rule 57C the inputs that had been used in the cells taken for testing had become waste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling the benefit of exemption under the notification issued under Rule 8(1), would not have the effect of the assessee having to cancel the credit availed of on the inputs used in the quantity of the final product which had been removed for the purpose of testing. The further submission was, there is no one-to-one correlation as between the input received on which credit was taken and the input that had been actually utilised and contained in the final product. 3.Counsel further contended that the rule making authority has subsequently made a specific rule to deal with contingencies like the present one in Rule 57CC. But that was done long after the period with which we are concerned in this case namely the period from 1-8-1990 to 30-4-199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notification issued under Rule 8(1), and also retain the Modvat credit on the inputs for the manufacture of such product which has been cleared without payment of duty. Rule 57C applies not only to cases where the product is subject to nil rate of duty but else applies to final products which are exempted from the whole of the duty of excise leviable thereon question of exemption will arise only when the product is leviable for payment of duty under the provisions of the Act or Rules made thereunder. Thus, where the final excisable product is subject to payment of duty, but a portion of such final product is allowed to be cleared without payment of duty by granting exemption for such clearance by issue of a notification under Rule 8(1) the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the cells so taken out were destroyed after the test, would not by that reason, become for the purpose of Rule 57D, waste or refuse arising during the course of manufacture. A sample which is destroyed, after testing such sample having been cleared after completion of the process of manufacture, cannot be regarded as waste which occurs during the course of manufacture. 7.The fact that the rule making authority at a subsequent point of time chose to regulate the manner in which the Modvat credit for inputs utilised in exempted final product would be dealt with, does not on that score alone indicate that the legislative intention prior to the introduction of Rule 57CC was to allow the manufacturers to avail of the Modvat credit on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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