2009 (4) TMI 231

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...., which were used in the manufacture of exempted goods under Notification No. 49/2003 and 50/2003, both dated  10-6-2003. The Original Authority dropped the demand of duty. The Revenue filed appeal before the Commissioner (Appeals). By the impugned order, the Commissioner (Appeals) held that the Modvat credit on the inputs contained in finished goods lying in stock/work in process at the time of exercise of option of exemption notification is not available to the appellants. Hence, the appellant filed this appeal. 2. After hearing both the sides and on perusal of the records, I find that the issue has already been decided by the Tribunal in the case of M/s. APCO Pharma Limited v. CCE, Meerut-I vide Final Order No. 183 of 2009-SM (BR) ....

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....elow :- 19. The Hon'ble Rajasthan High Court in the case of Hindustan Zinc Ltd. v. Union of India reported in 2008 (223) E.L.T. 149 (Raj.), while dealing with Rule 57C and Rule 57CC of Rules 1944 relying on the decision of Supreme Court in the case of Dai Ichi Karkaria Ltd. (supra) and Kerala High Court decision in the case of Premier Tyres Ltd. (supra) held that if on the date of entitlement, there is no illegality or invalidity in taking credit of such Modvat/Cenvat credit, right to utilisation such credit against further liability towards duty become indefeasible and is not liable to be recovered in such contingency. The relevant portion of the said decision is reproduced below :- "39. Upshot of this discussion in that prohibition clai....