TMI Blog2006 (11) TMI 231X X X X Extracts X X X X X X X X Extracts X X X X ..... d been availed after six months from the date of "issue" of Bill of Entry held to be the same as the date of payment of CVD; that the appellants contested the proposal by submitting that the delay in taking the above credit was on account of the delay on the part of Customs authorities in assessing and releasing the documents and also by relying on a decision of the Tribunal; and that, in adjudication of the dispute, the jurisdictional Commissioner vide Order-in-Original No. 10/2004, dated 31-8-2004 upheld the above proposal of the department and disallowed the entire Modvat credit of CVD on the ground of limitation in view of sub-rule (5) of Rule 57G of the Central Excise Rules, 1944. 3. At the final hearing stage of the appeal filed by the party against the above order of the Commissioner, the regular Bench, after hearing both sides, noted conflicting views of different Benches of the Tribunal on the question whether the time-bar provision contained in sub-rule (5) of Rule 57G of the Central Excise Rules, 1944 was applicable to availment of Modvat credit of CVD paid on imported inputs, based on the appropriate copy of Bill of Entry prescribed under sub-rule (3) of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was relied on in the case of Ashok Leyland Ltd. v. CCE, Chennai - 2005 (187) E.L.T. 355 (Tri. - Chennai), another case noted by the referral Bench. The above Larger Bench decision of the Tribunal and the apex Court's decision in Osram Surya (P) Ltd. v. CCE, Indore - 2002 (142) E.L.T. 5 (S.C.) were also relied on in Ashok Leyland case for holding that, after 29-6-1995 (the date on which the time-bar provision was first inserted in Rule 57G), it was not open to a manufacturer of final product to take Modvat credit on imported inputs beyond six months from the date of the prescribed document viz. relevant copy of Bill of Entry. 4. Heard both sides. Learned advocate who represented the appellants sought to rule out the applicability of sub-rule (5) of Rule 57G to Modvat credit of CVD paid on imported inputs cleared for home consumption under a Bill of Entry by relying mainly on the decision in Bullows Paint Equipment case. On the other hand, the departmental representative argued in support of the view taken by the Tribunal in Duracell case. According to learned advocate, the apex Court's judgment in the case of Osram Surya (P) Ltd. (supra) or the Tribunal's Larger Bench decision in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me consumption if he was satisfied that the goods entered under Section 46 for home consumption were not prohibited goods and that the importer had paid the duty assessed thereon and any charges payable under the Act in respect of the goods. The procedure in detail can be had from the Customs Manual - a compilation of instructions of CBEC/Ministry of Finance, followed in all Customs Houses. For our purpose, we need only mention that, ultimately, the importer would receive the triplicate copy of the Bill of Entry along with the out-of-charge order and would retain the same. This copy of the Bill of Entry carries the dates of filing, assessment, payment of duty, examination (second check) and out-of-charge order. It is, also, not in dispute that, upon assessment of duty by the proper officer, the triplicate copy of Bill of Entry was required, under Section 47(1), to be returned to the assessee (importer) for payment of duty and other charges if any and, accordingly, the assessee should make the payments, whereupon the proper officer would pass the 'out-of-charge' order under Section 47(1). The triplicate copy of Bill of Entry (assessed) containing endorsement of payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er; (i) an invoice issued by an importer from his depot or from the premises of the consignment agent of the said importer provided the said depot or the premises, as the case may be, is registered under rule 174, and duly authenticated by the proper officer; (j) an invoice issued by a first stage or second stage dealer of imported goods registered under rule 174 and duly authenticated by the proper officer; (k) duplicate copy of a bill of entry generated on Electronic Data Interchange System installed in any Customs or Central Excise Commissionerate; (l) a certificate issued by the Superintendent of Central Excise or by the proper officer in the Customs area under rule 57E; and (m) an invoice issued by a manufacturer of final products under sub-rule (3) of rule 57F or sub-rule (1) of rule 57-S." Learned counsel for the appellants has dwelt much on the absence of the word "issued" in the company of 'triplicate copy of a Bill of Entry' and 'duplicate copy of a Bill of Entry generated on EDI System' respectively in clauses (c) and (k). He has argued that, for the applicability of sub-rule (5) of Rule 57G to availment of Modvat credit on the basis of any of the documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd retained by the latter. In a harmonious construction of the provisions, the word 'issue' used in the time-bar provision viz. sub-rule 5 of Rule 57G has to be understood as meaning 'return' used in Section 47(2) of the Customs Act. Therefore, in our view, it is not correct to say that a triplicate copy of Bill of Entry mentioned in clause (c) of sub-rule (3) of Rule 57G or a duplicate copy of Bill of Entry mentioned in clause (k) of the said sub-rule was not a document "issued" by any authority. Either of these documents should be held to be a document issued by the proper officer of Customs to the importer. Therefore, sub-rule (5) of Rule 57G providing for a period of six months from the date of issue of any document specified in sub-rule (3) for the purpose of availment of input duty credit must be held applicable to credit of CVD paid on imported goods cleared for home consumption, which payment is evidenced by triplicate copy of Bill of Entry or duplicate copy of Bill of Entry, as the case may be. Nobody has a case that "any document specified in sub-rule (3)" would not include the copies of Bill of Entry specified under clauses (c) and (k) of the said sub-rule, nor can anybo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The 'accessory' must, therefore, serve the 'primary'." In the present case, we have construed the limitation provision of sub-rule (5) of Rule 57G, in relation to clauses (c) and (k) of sub-rule (3) of the Rule, in a manner consistent with the overriding provisions of Section 47 of the Customs Act and accordingly we have held that a triplicate copy of Bill of Entry specified in clause (c) of sub-rule (3) of Rule 57G and a duplicate copy of Bill of Entry specified in Clause (k) of the said rule are documents "issued" to the importer of input by the proper officer of Customs in terms of Section 47 of the Customs Act and the relevant subordinate legislations under the Act. 8. In the above view of the matter, we overrule the view taken by the learned single Members in the cases of Bullows Paint Equipment Pvt. Ltd. (supra) and Atul Ltd. (supra) and by the Division Bench in the case of M/s. Texmaco Ltd. (Supra) and hold that the correct view was taken by the Northern Bench in the case of M/s. Duracell (India) Pvt. Ltd. (supra). We also observe that the view taken in Duracell case was correctly followed by the Chennai Bench in the case of Ashok Leyland Ltd. (supra). The question re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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