9911796707
TMI Blog2008 (7) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... ce was issued to the assessee on 25-7-1994, and corrigendum was issued on 18-9-1995, for recovery of central excise to the tune of Rs. 4,04,387/- taken as Modvat credit on grinding media balls of ceramic, falling under sub-heading 6907.00, and of iron and steel falling under sub-heading 7325.20, of the Schedule to the Central Excise Tariff Act. It was alleged that the assessee has taken credit of the aforesaid amount vide RG.23 Part-II, Entries No. 632 to 637, 639 and 640 all dated 16-6-1994, for inputs received by them in the factory for the period 24-9-1992 to 8-6-1993. The other ground given was, that the assessee did not file any declaration under Rule 57G for aforesaid type of grinding media balls, before utilizing them in the factory, whereas the assessee has filed a declaration on 28-9-1992, wherein specific quality of grinding media ball of iron and steel falling under sub-heading No. 7325.90, and 7326.11 were declared as inputs, and that ceramic grinding media balls were declared for the first time on 30-3-1993, at which time grinding media balls of iron and steel falling under sub-heading 7325.20, were also declared. 4. The declaration dated 28-9-1992 was disallowed, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as such the above order was passed. 7. The Revenue filed appeal, which was dismissed by the Commissioner (Appeals), following the earlier judgment in the matter of assessee itself, in CCE v. Durgapur Cement Works reported in 1997 (90) E.L.T. 197, Indian Rayon & Industries Ltd. v. CCE, Jaipur reported in 1995 (76) E.L.T. 358, HMP Cements v. CCE reported in 2000 (117) E.L.T. 549, Sriram Cement Works v. CCE, Jaipur, Final Order No. A/805/93-NRB dated 1-10-1993. 8. The Revenue preferred further appeal before the learned Tribunal, and following the judgment in the case of assessee itself, in Indian Rayon Industries Ltd. v. CCE, Jaipur, reported in 1995 (76) E.L.T. 358, the order of Commissioner was found to be perfectly valid, and the appeal was dismissed. 9. A look at the memo of reference petition shows, that according to the Revenue against the earlier order passed by the Tribunal, in the case of assessee itself, special leave petition was filed before Hon'ble the Supreme Court, challenging the order of this Court dismissing the reference application, wherein Hon'ble the Supreme Court directed the Tribunal to refer the matter to the High Court (Ground No. 13 of the Reference Peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (hereinafter referred to as the "specified duty") paid on the goods used in or in relation to the manufacture of the said final products (hereinafter referred to as the "inputs) and for utilising the credit so allowed towards payment of duty of excise leviable on the final products, whether under the Act or under any other Act, as may be specified in the said notification, subject to the provisions of this section and the conditions and restrictions that may be specified in the notification : Provided that the Central Government may specify the goods or classes of goods in respect of which the credit of specified duty may be restricted. Explanation-For the purposes of this rule, "inputs" includes- (a) inputs which are manufactured and used within the factory of production, in or in relation to, the manufacture of final products. (b) paints and packaging materials, (c) inputs used as fuel, and (d) inputs used for generations of electricity, used within the factory of production for manufacture of final produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of excise or the additional duty under section 3 of the Customs Tariff Act, 1975 (51 of 1975), as may be specified in the said notification (hereinafter referred to as the "specified duty") paid on the goods used in or in relation to the manufacture of the said final products whether directly or indirectly and whether contained in the final products or not (hereinafter referred to as the "inputs") and for utilising the credit so allowed towards payment of duty of excise leviable on the final products, whether under the Act or under any other Act, as may be specified in the said notification, subject to the provisions of this section and the conditions and restrictions that may be specified in the notification : Provided that the Central Government may specify the goods or classes of goods in respect of which the credit of specified duty may be restricted. Explanation - For the purposes of this Rule, "inputs" includes - (a) inputs which are manufactured and used within the factory of production, in or in relation to, the manufacture of final products, (b) paints and packaging materials, (c)&nbs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equivalent to the amount specified in the said notification and the credit of the declared duty shall be allowed to such manufacturer." 12. On the basis of this provision of Rule 57A it was contended, that of course there is exclusion clause excluding machines, machinery, plant, equipment, apparatus, tools appliances or capital goods as defined in Rule 57Q, used for producing or processing of any goods, or for bringing about any change in any substance, in or in relation to the manufacture of the final products, or used for any purpose in the factory. But then, even this exclusion clause excludes from out of these excluded items, component parts used in the manufacture of final product, inasmuch as the exclusion is of the aforesaid machines, machinery, plant, equipment, apparatus, tools, appliances or capital goods as defined in Rule 57Q, other than those used as component parts in the manufacture of final product. Thus it is contended, that since even the highest case of the Revenue is, that the grinding media balls are component parts, however, by virtue of further exclusion of clause, contained in exclusion clause, the grinding media balls clearly fall within the definition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly and whether contained in the final products or not (hereinafter referred to as the "inputs") and for utilising the credit so allowed towards payment of duty of excise leviable on the final products, whether under the Act or under any other Act, as may be specified in the said notification, subject to the provisions of this section and the conditions and restrictions that may be specified in the notification : Provided that the Central Government may specify the goods or classes of goods in respect of which the credit of specified duty may be restricted. Explanation - For the purposes of this Rule, "inputs" includes- (a) inputs which are manufactured and used within the factory of production, in or in relation to, the manufacture of final products, (b) paints and packaging materials, (c) inputs used as fuel, (d) inputs used for generation of electricity, used within the factory of production for manufacture of final products or for any other purposes, (e) accessorie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd no. (ix) was taken by the Revenue, to the effect, that the declaration in respect of "balls" was not filed, and credit availed without filing proper declaration cannot be regularised by imposing penalty on the assessee. Thus, it appears that in the appeal before the learned Commissioner ground was taken to assail this part of the order of the Assistant Commissioner, but then from a look at the order of the learned Commissioner it does not transpire that the said ground was ever pressed. Otherwise, may be that the question about admissibility of Modvat credit was covered by the earlier judgment in the assessee's case but then it might have been possible for the learned Commissioner to come to any conclusion either ways, about eligibility of Modvat credit, or otherwise, on account of non-submission of declaration. Be that as it may. The fact remains that this contention has not been considered by the learned Commissioner. In this sequence a look at the memo of appeal filed before the learned Tribunal shows, that in this entire appeal there is not even a whisper on the side of the Revenue, on this aspect, either on the basis, that it could not be so regularised, or on the basis, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
