TMI Blog2005 (12) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... tion as to whether the Appellant herein was entitled to take the credit in terms of sub-rule (8) of Rule 56A of the Rules or not. It would be open to the Appellant herein to show that it was so entitled. For the aforementioned purpose, thus, it is necessary that the claim of the Appellant be considered afresh by the Assistant Commissioner of Excise. The Appeal is allowed and the impugned judgments are set aside with the aforementioned directions. - 7534 of 2005 - - - Dated:- 16-12-2005 - S.B. Sinha and P.K. Balasubramanyan, JJ. [Judgment per : S.B. Sinha, J.]. - Leave granted. 2.The appellant herein inter alia is engaged in manufacture of Hydrochloric Acid. It falls under Chapter Heading 29 of the First Schedule of the Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orma Credit Scheme") Sub-rules (8) and (9) of Rule 56A of the Rules, which are material for the purpose of this case, read as under : Notwithstanding anything contained elsewhere in this rule"(8) or any change in the nomenclature or classification of any goods consequent to the commencement of the Central Excise Tariff Act, 1985 (5 of 1986), the credit of duty paid on any material, component parts or finished product shall be allowed if the credit of duty was allowed in respect of such material, component parts or finished product under this rule immediately before the commencement of the Central Excise Tariff Act, 1985 (5 of 1986). Provided that no such credit shall apply in respect of any material, component parts or finished product, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion No. 177 of 1986 that it has wrongly claimed credit in terms of Rule 57A but submitted that it should not be denied credit of duty on the input which was available prior to 1-3-1986 under Rule 56A. The said contention of the Appellant was rejected by the Additional Commissioner of Central Excise by an order dated 12-12-1997 whereagainst an appeal was preferred before the Commissioner of Central Excise. By an order dated 24-2-1998, the Commissioner allowed the appeal recording that indisputably the input was received in the factory and was used in the manufacture of final product and although initially the Appellant claimed credit under Rule 57A, they found the same as inconvenient and wanted to avail credit under Rule 56A(8) of the Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner noticed that the assessee had taken credit wrongly and, thus, it is not eligible for credit under Rule 56A of the Rules. The Commissioner, on the other hand, opined that the Appellant would be so entitled. The Tribunal did not discuss the question in great details but considered the question from the point of view of applicability of its earlier in CCE v. Crest Chemicals Pvt. Ltd. and having found the same to be not applicable allowed the appeal of the Revenue. The High Court affirmed the said order of the Tribunal stating : "The fact of the matter is, as noticed by us above, that the petitioner claimed Modvat credit only under Rule 57A. As a matter of fact, not only that no claim was made by the petitioner under Rule 56A(8) but also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be refused merely because the appellant had omitted to claim the relief. While we believe the appellant is right in his contention, we do not think that the mere existence of such an obligation on the Income-Tax Officer is sufficient..." 13.Sub-rule (9) of Rule 56A of the Rules debars an assessee from taking benefit of one or the other sub-rules of Rule 56A if credit of duty paid on such material, component parts or finished product has been taken under Rule 57A. Thus, the said provision merely debars taking of credit both under Rules 56A and 57A. The Appellant herein although had taken credit as regard input of Naphthalene in terms of Rule 57A, evidently, the same was not applicable in his case. He had, therefore, no other option but to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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