Order No. A/1544/CAL/97 arising from in Appeal No. E/3722/88-B. Case: Commissioner of Central Excise, Calcutta-II Vs Swalka Kel (P) Ltd.. CEGAT (Customs, Excise & Gold (Control) Appellate Tribunal) & CESTAT (Customs, Excise and Service Tax Appellate Tribunal)
| Case Number | Order No. A/1544/CAL/97 arising from in Appeal No. E/3722/88-B |
| Counsel | For Appellant: Shri S.N. Ghosh, JDR and For Respondents: Shri S.N.S. Mahapatra, Advocate. |
| Judges | Shri P.C. Jain, Member (T) and Smt. Archana Wadhwa, Member (J) |
| Issue | Central Excise Rules, 1944 - Rules 57H, 57G |
| Judgement Date | November 03, 1997 |
| Court | CEGAT (Customs, Excise & Gold (Control) Appellate Tribunal) & CESTAT (Customs, Excise and Service Tax Appellate Tribunal) |
Order:
P.C. Jain, Member (T), (Eastern Bench At Calcutta)
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Briefly stated the facts of the case are as follows:
1.1 The respondents herein applied for taking Modvat credit of duty alleged to have been paid by them in respect of stock in respect of iron and steel products received during the period from 1-3-1986 to 31-3-1986 under Rule 57H. They made three applications dated 1-4-1986, 7-4-1986 and 11-9-1986.
1.2 On scrutiny by the Assistant Commissioner, the credit for the inputs lying in stock as aforesaid or received by them during the aforesaid period in respect of the application dated 1-4-1986, was allowed by the Assistant Commissioner. However, the said Assistant Commissioner disallowed the applications dated 7-4-1986 and 11-9-1986.
1.3 On appeal, the lower appellate authority, however, allowed the appeal on the ground that even though the respondents would be not entitled to the benefit of Rule 57H, but they would be entitled to the benefit of deemed Modvat credit in terms of Ministry''s letter F. No. B-22/5/86-TRU, dated 7-4-1986. It was held by the Commissioner (Appeals) that no cut-off date was provided in the said letter of the Ministry dated 7-4-1986 as it was provided under sub-rule (2) of Rule 57H that no Modvat credit shall be allowed in respect of inputs on which duty had been paid on or before 31-1-1986. Hence this appeal by the Revenue before the Tribunal.
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Learned JDR, Shri S.N. Ghosh for the Revenue submits that the lower appellate authority''s impugned order in allowing the benefit of the Modvat credit of Rs. 1,30,159.07 in respect of the applications dated 7-4-1986 and 11-9-1986 on the basis of the Ministry''s Circular dated 7-4-1986, is patently incorrect insofar as this benefit includes deemed credit on Nickel inasmuch as the `Nickel'' was not at all covered by the scope of the said circular dated 7-4-1986. On this plea of the learned JDR there is no dispute from the respondents herein. Therefore, the benefit of Rs. 31,605.95 in respect of `Nickel'' out of the total credit of Rs. 1,30,159.07 is not allowable to the respondents on this short ground itself. We, therefore, allow the appeal of the Revenue on this short ground urged by the learned JDR to the aforesaid extent.
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As regards the balance amount of Rs. 98,554.12, learned JDR has submitted that this amount will also not be admissible to the respondents inasmuch as the respondents have not been able to prove that the duty was paid by them on these goods...
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