TMI Blog2003 (3) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... case ( 1999 (1) TMI 34 - SUPREME COURT OF INDIA ), sub-rule 17 cannot apply to vested rights. Therefore to the extent that the goods have already been exported, prior to March, 1997, the assessee would be entitled to a refund. - 6493 of 2000 - - - Dated:- 12-3-2003 - S.N. Variava and B.P. Singh, JJ. [Order]. - These appeals are against the judgments of the Customs, Excise Gold (Control) Appellate Tribunal (for short "the CEGAT") dated 9th August, 2000 and 3rd August, 2001. The question involved is with regard to interpretation of Rule 57F(17) of the Central Excise Rules, 1944, (for short, "the Rules") which was introduced, by an amendment, with effect from 1st March, 1997. 2.Briefly stated the facts are as follows :- The ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 87.06 of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) shall lapse and shall not be allowed to be utilised for payment of duty on any excisable goods, whether cleared for home consumption or for export : Provided that nothing contained in this clause shall apply to credit of duty, if any, in respect of inputs lying in stock or contained in finished products lying in stock on the sixteenth day of March, 1995; (b) on the first day of March, 1997, with the manufacturer of bulk drugs falling under Chapter, 28 or 29 and with the manufacturers of black and white picture tubes falling under sub-heading No. 8540.12 shall lapse and shall not be allowed to be utilised for payment of duty on any excisable goods, whether cleared f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-rule shall apply to credit of duty, if any, in respect of inputs lying in stock or contained in finished products lying in stock on the 16th day of March, 1995." 7.Thus, the then sub-rule 4A is identical to sub-rule 17 which is under consideration. In Eicher Motors case (supra), it has been held that the assessee became entitled to take the credit on the input having been received in the factory on the basis of the existing Scheme. It is held that the right to credit became absolute when the input was used in the manufacture of the final product. It is held that the incident following thereto must take place in accordance with the Scheme under which the duty had been paid on the manufactured product. It is held that if such a situati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision, then it is not necessary that in all subsequent proceedings the validity must again be challenged. It is sufficient if a party claims that the provision has to be read in the manner laid down by a judgment of this Court. In the light of the judgment of this Court in Eicher Motors case (supra), sub-rule 17 cannot apply to vested rights. Therefore to the extent that the goods have already been exported, prior to March, 1997, the assessee would be entitled to a refund. 9.Reliance was placed in the case of Osram Surya (P) Limited v. Commissioner of Central Excise, Indore reported in 2002 (9) SCC 20. In this case the Court considered the effect of proviso to Rule 57-G of the Central Excise Rules, 1944. The proviso read as fo11ows :- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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