TaxTMI 
TaxTMI 
2009 (10) TMI 307
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....al No. E/2628/02-NB/SM decided by the North Regional Bench of Customs, Excise and Service Tax Appellate Tribunal, New Delhi dated 13th of June, 2003. In the application the following questions of law have been sought to be raised:- (i) Whether the Hon'ble Tribunal was justified in denying a part of Modvat credit taken after expiry of six months when the major part of the Modvat credit due was taken within the period of six months as contemplated under the Rules? (ii) Whether the Hon'ble Tribunal was justified to deny a part of the Modvat credit inadvertently not taken by the applicant in terms of Rule 57G(5) of the Central Excise Rules, 1944 when the major part of Modvat credit due was taken within six months of the date of issue of t....
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....999. The Parliament in the Budget 1999 removed the restriction to entitlement of Modvat from 95% to 100%. In other words, the applicants were entitled to Modvat credit admissibility to the extent of 100% of the input cost. The applicants, however, continued to avail the Modvat credit on inputs up to 95% of the duty paid on input cost, notwithstanding the removal of 95% restriction by the Budget of the year 1999. In March, 1999, the applicant had taken 95% of the total duty paid on inputs whereas they could have taken 100% of the total duty paid on inputs. For the first time, in January, 2000 the applicant claimed the balance 5% credit. The differential credit of Modvat was taken on 13 of January, 2000 which was not allowed by the adjudicati....
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....the said Rule, which is not so here. Here, the credit was claimed and granted by the department within the period of six months, but at a lesser rate. In substance the submission is that where a credit was claimed and granted in part by the department, the manufacturer may claim the differential credit at any time, notwithstanding the prescribed period of limitation of six months in the aforestated Rule. In contra, Shri Subodh Kumar, advocate, on the other hand, submits that the controversy on hand is squarely covered by the aforestated judgment of the Apex Court in the case of Osram Surya (P) Ltd. (supra). Indisputably, the differential credit sought to be raised by the applicants was beyond the prescribed period of 6 months, the bar of li....
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.... the said sub-rule operates prospectively in regard to those manufacturers who seek to take credit after coming into force of the rule. Agreeing with the Tribunal, the Apex Court has observed as follows:- "Therefore, in our opinion, the Tribunal was justified in holding that the rule in question only restricts a right of manufacturer to take the credit beyond the stipulated period of six months under the rule." 9. The ratio of the above judgment is that the said sub-rule is in the nature of period of limitation restricting the right of manufacturer to take the credit within the specified period of limitation and beyond the period of limitation, the benefit of said rule cannot be availed of by the manufacturer. 10. Having said as ab....
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....and in consonance with justice. It is said that equity and taxation are often strangers, attempts should be made that these do not remain always so and if construction results in equity rather than in injustice, then such construction should be preferred to the literal construction. [(See CIT v. J.H. Gotla (1985) 156 ITR 323 (S.C.)] 14. Keeping the above principles of interpretation of law, on a plain reading of relevant sub-rule (5) of Rule 57G would show that it admits no exception whatsoever for consideration of any claim of Modvat credit after the expiry of period of six months from the date of the commencement of the period of limitation. 15. Apart from the above, keeping in view the salutary principle applicable to the provision....