TMI Blog2004 (11) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... the ground that since Rule 2(g) has been amended w.e.f. 1-3-2003 by which Cenvat Credit Facility has been withdrawn from Light Diesel Oil w.e.f. 1-3-2003. 3.Learned counsel contends that in view of the Circular of Central Board of Excise and Customs dated 31-3-2003 [hereinafter to be referred to be "the Assessing Officer"], which is binding on Assessing Officer, the hearing before Assessing Officer is only formal. Therefore, he has been forced to come before this Court at this stage. In support of his contention that he is entitled to avail Cenvat Credit Facility on Light Diesel Oil, as on that date the raw material was received by him. He relies on Rule 4(1) of the Cenvat Rules. Upto 28-2-2003 the Light Diesel Oil was an input in respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it stood before its amendment vide Notification No. 13/2003-C.E. (N.T.), dated 1-3-2003 did not exclude from its purview Light Diesel Oil from the definition of inputs and was held by Courts to be input eligible for Cenvat credit. Therefore, with the combined reading of the definition of 'input' under Rule 2(g), Rule 3 enabling the manufacturer, producer to take Cenvat credit on the inputs read with Rule 4, the time at which a manufacturer or producer could avail the Cenvat until 28-2-2003 Cenvat credit in respect of any eligible input could be availed at the time when the same was received in the factory of the manufacturer. 7.The definition excluding Light Diesel Oil from the purview of input had not been brought into effect retrospect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and the claim of the petitioner for refund of the amount of duty paid by him on the imports was rejected on the ground of relying on the amended provision. Before the Supreme Court, it relied its earlier decision in Eicher Motors Ltd. [supra] and the Court found that the principle enunciated in Eicher Motors Limited's case [supra], is fully applicable to the case. 9.The contention of the Revenue that without striking down sub-rule (17), no relief could be given to the petitioner and that in the absence of such a challenge to the sub-rule (17), the judgment of the Tribunal deserves to be sustained was rejected on the ground that "what was then sub-rule 4A is now sub-rule 17(a). Sub-rule 17(b) is identical to sub-rule 17(a) except that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot been actually used as input until then and was forming part of closing stock as on 28-2-2003 or for that matter opening stock on 1-3-2003. Since w.e.f. 1-3-2003, L.D.O. has been specifically excluded from definition of inputs under Rule 2(g) by so providing in Explanation to Rule 2(g), the Revenue has sought to withdraw Cenvat Credit availed by the assessee on such stock of L.D.O. up to 28-2-2003 in terms of amended rule 2(g) and direction issued by CBEC dated 31-3-2003. The Revenue required the assessee co reverse credit availed by him in respect of L.D.O. stock as on 28-2-2003. The assessee claimed that it had acquired a vested right to claim the Cenvat credit in terms of Rule 4(1) of the Cenvat Credit Rules, 2002, and subsequent amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to existence]". 13.It has been brought to our notice that Special Leave petition filed against the aforesaid judgment has since been dismissed by the Supreme Court by a speaking order [2004 (170) E.L.T. A306 (S.C.)]. While dismissing the SLP against the judgment of the Karnataka High Court in Grasim Industries Company's case (supra), the Court observed as under : "In our view, this case is fully covered by the decision of this Court in Samtel India Ltd. v. Commissioner of Central Excise, Jaipur reported in 2003 (155) E.L.T. 14 (S.C.) and the High Court has rightly so held". 14.In view of the aforesaid decision, the controversy raised in the present case is fully governed by the ratio laid by the Karnataka High Court as affirmed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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