Modvat re-credit barred by limitation; later excise order was a jurisdictional nullity without review power.

Re-credit of Modvat credit taken on the strength of earlier duty-paying invoices was held time-barred, as the credit entry was made beyond the six-month limit under Rule 57G(5) read with the amended Rule 57H regime. The earlier disallowance of credit had attained finality because it was not appealed and had already been reversed. A later order allowing re-credit was treated as an impermissible review, since the Assistant Commissioner had no statutory power of review under Central Excise law; it was therefore without jurisdiction and non est. The benefit claimed under that later order could not be sustained.

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Issues: (i) Whether the re-credit of Modvat credit taken on the strength of invoices issued long earlier was admissible under Rule 57G and the amended Rule 57H; (ii) Whether the Assistant Commissioner's order allowing re-credit could stand when the earlier disallowance had attained finality and the subsequent order was passed without jurisdiction.

Issue (i): Whether the re-credit of Modvat credit taken on the strength of invoices issued long earlier was admissible under Rule 57G and the amended Rule 57H.

Analysis: The relevant invoices had been issued much earlier, while the re-credit was taken only on 7-7-1998. The Tribunal held that the time-limit under Rule 57G(5), read with the amended regime introduced by Notification No. 28/95-C.E. (N.T.), applied to the credit entry, and the re-credit was taken beyond six months from the date of the duty-paying documents. On that basis, the credit was barred by limitation.

Conclusion: The re-credit was inadmissible and the finding on time-bar was against the assessee.

Issue (ii): Whether the Assistant Commissioner's order allowing re-credit could stand when the earlier disallowance had attained finality and the subsequent order was passed without jurisdiction.

Analysis: The earlier order disallowing credit had not been appealed against and had been acted upon by reversal of credit, so it had attained finality. The later order permitting re-credit under Rule 57H amounted to a review of the earlier order, but the Assistant Commissioner had no power of review under the Central Excise law. The later order was therefore without jurisdiction and non est, and the absence of departmental review did not cure that defect. The Commissioner (Appeals) also erred in treating the adjudication as beyond the scope of the show-cause notice, since limitation had been specifically raised therein.

Conclusion: The later order allowing re-credit was invalid and the assessee could not rely on it.

Final Conclusion: The impugned appellate order was set aside, and the Revenue's challenge succeeded on both limitation and jurisdictional grounds.

Ratio Decidendi: A credit re-availed beyond the prescribed limitation is inadmissible, and an order passed by an excise authority purporting to review an earlier final order, without statutory power of review, is a jurisdictional nullity and cannot sustain the benefit claimed under it.

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