TMI Blog2005 (11) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... ble and exempted components. During the relevant period, there was no machinery created for recovery of 8% of the price of all goods cleared for Defence use in terms of the Exemption Notifications prevailing then. The Tribunal, in the case of Pushpaman Forgings Pvt. Ltd. v. CCE, Mumbai VII - 2002 (149) E.L.T. 490 (T) = 2002 (48) RLT 107 (CEGAT-Mum.) held that the amount of 8%, which is required to be reversed in terms of Rule 57CC, is neither 'Modvat credit nor a duty of excise'. Therefore, it was held that the said amount cannot be recovered in terms of Section 11A or Rule 57-I(1). It was further held that there was no mechanism to recover such duties and the same cannot be enforced This judgment was upheld by the Apex Court in 2003 (153) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since credit of the duty paid on the inputs used in the manufacture of copper wire had already been taken in accordance with Rule 57 A. Once appropriate entries have been made in the register, there is no rule under which the process could be reversed. It is true that the assessee has not maintained separate accounts or segregated the inputs utilized for manufacture of dutiable goods and duty free goods, as should have been done. But our attention was drawn to a departmental circular according to which in a case where the manufacturer produces dutiable final products and also final products which are exempt from duty and it is not reasonably possible to segregate inputs utilized in the manufacture of the dutiable final products from the fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ificate. Has the clearance been obtained at the earliest point of time, then the demands would not be sustainable in terms of the then prevailing judgments. In any case, as there is no suppression of facts, they should not be penalized. 5. The learned SDR reiterated the departmental view. 6. On a careful consideration and perusal of records, it is very clear that in terms of the impugned order, there was no machinery for recovery of the amount. The Tribunal, in the case of Pushpaman Forgings Ltd., held it so. The judgment of Pushpaman Forgings Ltd. case was upheld by the Apex Court. Therefore, Clause 82 of the Finance Act, 2005 was promulgated to recover the amount retrospectively. The Explanation to Rule 82, extracted supra, clearly re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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