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TMI Blog2004 (11) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... 8-3-1995 and quash the same. 2. In the affidavit filed in support of the above writ petition, the petitioner would submit that the petitioner is engaged in the manufacture of Excisable goods falling under Chapter 87 of the Central Excise Tariff Act, 1985; that the petitioner is eligible to avail Modvat credit for the inputs received by it; that petitioner has availed higher Notional Credit as provided for under Rule 57B in respect of inputs received from Small Scale Industries eligible for concession under Central Excise Notification No. 175/86 to the tune of Rs. 2,36,471.50 in RG-23A Part II on 18-8-1993 in respect of inputs received during 1-4-1992 to 21-11-1992. 3. The petitioner would further submit that the Superintendent of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scribe any period of limitation within which the Credit should be availed; that the failure to avail credit immediately on receipt of the goods does not extinguish the right to avail the credit and that the proposed action of the respondents is without jurisdiction. 6. The learned senior counsel would further submit that admittedly for the period from 1-4-1992 to 31-3-1993 the petitioner availed the credit on 18-8-1993 is the crucial date and at that time there was no period of limitation as prescribed by the Rules, nor do the Rules prescribe when the petitioner must avail the credit then and there as and when he received the duty paid inputs; the learned senior counsel would further submit that the amended Rule 57G in sub-rule (2) was int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... product he will claim the benefit of the credit. Since the Rule 57(g)(2) having been amended only on 29-6-1995 and the credit availed by the petitioner is prior to that amendment i.e. on 18-8-1993, the question of availing the benefit within six months does not arise to the petitioner's case; that even the availing of credit by the petitioner is within 8 months. On such arguments he would pray for the relief extracted supra. 8. The learned Additional Central Government Standing Counsel besides filing counter affidavit, would argue to the effect that under the scheme of Modvat credit as it stood during the relevant time, Rule 57B under which notional credit was taken, did not provide any time limit; that as per the ratio of the Hon'ble Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, and hence applying the principles of "reasonable period" in the absence of specific period, orders were passed and that no reasons were assigned for such belated taking of credit; that the order dated 28-3-1995 passed by the first respondent considering that the 6 months period as the reasonable time for taking credit presumably is in line with the period of limitation of 6 months for demand under Section 11A and for refund under Section 11B of Central Excise Act 1994, as they stood at the relevant time was upheld by the second and third respondents, and hence their reasoning is based on legal principles enunciated by Court of Justice. On such arguments, he would pray for dismissal of the above writ petition. 11. In consideration of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tances where under the reasonable time having been fixed by the Tribunals being only six months adopting the same a decision has been arrived at to recover the amount of Rs. 2,36,472/- under Rule 57(I) of the Central Excise Rules, 1944 from the petitioner without imposing any penalty and it is this order passed by the respondents is under challenge by the petitioner. 12. Though on the part of the petitioner he would attempt to afford reasons for the delay having caused, there is no denying of the fact that the delay is for 8 months and since the authorities have taken six months to be the reasonable time in the absence of any specific provision provided for availing such benefits depending upon the facts and circumstances of the case and f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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