2004 (6) TMI 457 - AT - Central Excise

Appellate Tribunal allows Modvat credit for unused duty: Supplier's inaction benefits recipient

COMMISSIONER OF CENTRAL EXCISE, JAIPUR-II Versus HINDUSTAN ZINC LTD.

COMMISSIONER OF CENTRAL EXCISE, JAIPUR-II Versus HINDUSTAN ZINC LTD. - 2004 (175) E.L.T. 143 (Tri. - Del.) Issues Involved:Whether Modvat credit of the duty taken by a company should be varied after the finalization of provisional assessment of the manufacturer who supplied the inputs.Analysis:The appeal before the Appellate Tribunal CESTAT, New Delhi involved the question of Modvat credit of duty taken by a company, specifically M/s. Hindustan Zinc Ltd., in relation to inputs received from a sister concern who had paid duty on a provisional basis. The core issue was whether the Modvat credit should be adjusted after the finalization of the provisional assessment of the supplier unit. The Tribunal considered arguments presented by both sides, with Shri Kumar Santosh, the Senior Departmental Representative, and Shri B.L. Narasimhan, the Advocate for the respondents, providing their perspectives.In this case, it was established that the supplier unit had paid duty in excess after the finalization of the assessment. The Revenue, however, disallowed the Modvat credit to the extent of the excess duty paid by the supplier. Both the Departmental Representative and the Advocate referred to a previous decision of the Tribunal in the matter of Hero Cycles Ltd. v. Central Excise, Chandigarh, where a similar issue had been addressed. The Tribunal in the aforementioned case had ruled that if the duty paid in excess due to finalization of assessment had not been claimed as a refund by the supplier, the appellant was entitled to claim the credit of duty specified in the duty paying document for the inputs received.Following the precedent set in the Hero Cycles Ltd. case, the Tribunal rejected the appeal filed by the Revenue in the present matter. The decision was based on the fact that the Revenue did not assert that the supplier unit had sought a refund of duty post the finalization of the assessment. Therefore, the appellant, M/s. Hindustan Zinc Ltd., was deemed eligible to avail the Modvat credit of the duty specified in the duty paying document for the inputs received from the supplier unit. The judgment reaffirmed the principle established in the earlier case, emphasizing the importance of the supplier not claiming a refund of the excess duty paid to allow the recipient to avail the Modvat credit.