TaxTMI 
TaxTMI 
2010 (9) TMI 29
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....al Excise Rules by which the manufacturers were allowed to take the credit of duty paid on excisable goods used as inputs in or in relation to the manufacture of designated final products. In terms of the requirement the Petitioner company filed a declaration under Rule 57G of the Central Excise Rules in respect of Caustic Soda (final product) and Metal Anodes (inputs). The Petitioners placed an order on 30.09.1992 on Titanor Components Ltd, Rampur, UP for the supply of 198 coated Metal Anodes, the said company after payment of excise duty thereon despatched the said Anodes under their gate pass bearing serial No.25 dated 28.3.1993. The same was sent by the Transport Corporation of India vide Consignment Note No.Y 19682 dated 28.3.1993 and Titanor's delivery challan of even date. It is the case of the Petitioners that they were unable to take delivery of consignment of the said Anodes due to a lockout for a period of about 7 months period which ended in or about May, 1993. It is further the case of the Petitioners that the Petitioners' manufacturing activities recommenced only around July 1993. The Central Government has issued a Notification dated 30.3.1994 in exercise of powers c....
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....994 by which circular the Central Board of Excise and Customs (CBEC) forwarded a copy of Notification No.64CE (NT) dated 7.11.1994 amending Rule 57H of the said Rules. It was inter alia stated in the said circular that amendment was necessitated to remove the difficulties arising out of the budgetary changes in the year 199495 relating to acceptance of an invoice as the proper document for the purposes of Modvat Credit and on account of the issuance of Notification such as Notification No.21/94 and Notification No.32/94. The said circular clarified that the invoice/document issued, inter alia, by a manufacturer from his factory as a valid document for the purposes of allowing Modvat Credit and such invoice should contain the details as referred to in Notification No.15/94 and Notification No.21/94. By the said circular, the Assistant Commissioner was directed to recognize such document if issued by the categories of persons mentioned in the notifications who had got themselves registered under Rule 57GG. It was further clarified that the document prescribed above by the CBEC could be accepted by the Assistant Collector only up to 31.12.1994. The Petitioners considering the said cir....
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.... developments which have taken place post filing of the Petition and have also amended the prayer clause accordingly by laying a challenge to the letter dated 8.7.1998. Aggrieved by the said Notification dated 30.3.1994 and the orders/letters dated 20.12.1994 and 6.1.1995 that the Petitioners have filed the present Petition. 5 On behalf of the Respondents affidavit has been on 14.8.1995 wherein, as mentioned earlier in this Judgment, in Paras 6 and 11 the Respondents have stated that the Petitioners would have produced the invoices containing the particulars of gate passes for allowing Modvat Credit . The Respondents have filed further affidavit which is in July 2007 wherein they have stated that since the Petitioners have not submitted the invoice prior to 31.12.1994, because in terms of the circular of the Board time to avail credit was extended up 31.12.1994, the Petitioners were not entitled to the credit. 6 We have heard the learned counsel for the Petitioners Mr.Kapil Moye and the learned counsel for the Respondents Mr. P S Jetly. 7 Though various submissions were advanced as regards the challenge to the notification, the principal thrust of the ....
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....procedure was changed for availing of Modvat Credit, substantive provision remained the same. It is an undisputed position that the Metal Anodes which were the inputs were cleared from the factory of the manufacturer on 28.3.1993 under a statutory gate pass after payment of excise duty. It is the case of the Petitioners that they could not receive the goods on account of the fact that there was a lockout in the Petitioners' factory and that the goods could be received only on 3.12.1994 and the Petitioners have availed of the said Modvat Credit to the extent of 23,85,653/in the first week of December 1994 itself. It is also not in dispute that prior to availing of the said Modvat Credit the Petitioners had complied the formalities in the form of filing a declaration etc. The impugned directions have been issued against the Petitioners based on the Notification No.16/94(NT) dated 30.3.1994 which inter alia required that where the gate pass issued prior to 1.4.1994, credit must be taken on or before 30.6.1994. It is only on the basis of the said condition that the Petitioners were directed to reverse the credit that they had availed of. The Petitioners therefore sought to challenge th....
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....y upto 31st December, 1994. In other words, any document issued by registered person prior to such registration would be acceptable if he is eligible to issue invoice/document under Notification No.15/94C. E. (N.T.) and Notification No.21/94C. E. (N.T.,)" 10 Writ Petition No.3495 OF 1995 Therefore as can be seen from the said circular the CBEC prescribed the invoice/document issued by the Manufacturer from his factory and that such invoice should contained details as regards to in Notification No.15/94C. E (NT) and Notification No.21/94CE (NT) and the Assistant Collector was directed to accept the said document only upto 31.12.1994 and recognize such document if issued by the category of persons mentioned in the said notifications. Though the Petitioners sought to claim benefit of the said circular and had approached the Assistant Collector vide letter dated 8.11.1996, the said representation of the Petitioners was rejected by the Respondents by letter dated 8.7.1998 in which it has been mentioned that the admissibility of the Modvat credit on the basis of G.P.T. had already been communicated to them vide the range office letter dated 6.1.1995. The reason mentioned in the....
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....ame has to be submitted to the Assistant Collector prior to 31.12.1994. In the instant case, there is no doubt that the said gate passes were submitted to the Assistant Collector prior to 31.12.1994 and since the gate passes can be said to be "a document" covered by the circular dated 8.11.1994, the Petitioners, in our view, would be entitled to the said Modvat credit on the said basis also. 12 In the light of the aforesaid it is not necessary for us to go into the legality of the said Notification No.16/94 as we are of the view that the Petitioners Writ Petition No.3495 OF 1995 would be entitled to Modvat credit on the basis of the circular issued by the Central Board of Excise and Customs dated 8.11.1994. 13 In that view of the matter, the impugned orders/letters dated 20.12.1994 and 6.1.1995 and the communication dated 8.7.1998 are set aside. There can be no debate as regards the fact that the said circular would be binding on the authority. A useful reference could be made to the Judgments of the Apex Court in that regard wherein the said issue had come up for consideration. A reference could be made to the judgments in the case of Collector of Central Ex....