TaxTMI 
TaxTMI 
1992 (5) TMI 95
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....e period 27-4-1987 to 29-2-1988, which were either lying in stock as such or were consumed in the manufacture of the finished products. They submitted a detailed statement also from which it reveals that they desired to avail credit of duty on the inputs lying in stock for Rs. 31,279.77 and on the inputs used and contained in finished products for Rs. 30,879.00 (totalling to Rs. 62,158.77) during the aforesaid period. The declaration on their part on 14-3-1988 was received in the Assistant Collector's office on 14-3-1988 and the Assistant Collector of Central Excise, Rishra Division allowed credit of Rs. 2190.00 only under Rule 57H(1), being the amount of duty involved on the inputs received, immediately before filing the declaration under Rule 57H(1) i.e., received on 29-2-1988 vide GP No. 952 dated 27-2-1988. After obtaining necessary formalities, the said Assistant Collector disallowed the rest of the duties i.e. Rs. 59,968.77 as the raw materials in respect of the same were received prior to the last consignment dated 29-2-1988 and therefore, not entitled under Rule 57H(1) of the said rules, vide his order-in-original No. 1/Modvat/49/Excise-II/89 dated 1-2-1989. The Collector (....
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....ing the credit of Rs. 2190.00 only disallowing the other credits relating to the raw materials received prior to 29-2-1988. Therefore, he contended that the order of the Collector (Appeals) extending the benefit to the respondents with respect to other consignments received prior to 29-2-1988 is not in accordance with law. In this connection, he pointed out that Rule 57H was amended on 1-3-1987. Again it was amended on 15-4-1987 by Notification No. 117/87-C.E. Therefore, taking into consideration the nature of the amendments to Rule 57H, Shri Biswas contended that the order of the Collector (Appeals) extending the benefit to other consignments which were received after 14-3-1988 may be set aside, inasmuch as the words - 'immediately before'- are confined to the last consignment received by the respondents immediately before giving the declaration and it will not extend to other consignments. 3. The learned Advocate, Shri K.K. Banerjee appearing on behalf of the respondents, contended that the words - 'immediately before' - have to be construed in the context of Rule 57H. It was his contention that the words, 'immediately before' convey the same meaning as preceding the date. In ....
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....he declaration in that regard. So far as the filing of the declaration by the appellants is concerned the same has been done correctly under the law and the appellants have claimed the benefit in respect of the inputs which were received by them before they filed the declaration as required under the law. The meaning in this context, therefore, to be given to the words 'immediately before' is as set out above and only in that context the purpose of the MODVAT scheme as envisaged under Rule 57H can be effectuated. The meaning of the words to be given has to be such as would advance the legislative intent for which a particular legislation has been introduced and in this background we hold that as the inputs were received before the appellants filed a declaration and these were in stock and necessary evidence of duty payment etc. was available, the benefit of the MODVAT Scheme cannot be denied to the appellants. Any other interpretation would only lead to incongruous situation where it may so happen that the goods which were manufactured even in the previous year and had not yet been cleared from the manufacturer's factory or were in the stream of the market for being brought to the ....
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....uestion. In the result, I dismiss this appeal. Date : 11-1-1991 (T.P. NAMBIAR) MEMBER (JUDICIAL) 8. [Contra per : D.C. Mandal, Member (T)]. Rule 57H(1) of the Central Excise Rules, 1944 reads as follows :- "Notwithstanding anything contained in Rule 57G, the Assistant Collector of Central Excise may allow credit of duty paid on inputs received by a manufacturer immediately before obtaining the dated acknowledgement of the declaration made under the said rule if he is satisfied that, - (i) such inputs are lying in stock or are received in the factory after filing the declaration made under rule 57G, or 3[* * *] and that no credit has been taken by the manufacturer in respect of such inputs under any other rule or notification : Provided that such inputs are not used in the manufacture of final product which is exempt from the whole of the duty of excise leviable thereon or is chargeable to nil rate of duty." The provisions of Rule 57H(1) are applicable to inputs lying in stock or the inputs which are received in the factory after filing the declaration made under Rule 57G but immediately before obtaining the dated acknowledgement of the decl....
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....ion (which has been reproduced above in this order) was given to them. It would have been proper had the two orders themselves been circulated to them. 12. The following portion of the order of the Hon'ble Technical Member was shown to both sides to enable them to make their submissions in the matter : "The provisions of Rule 57H(1) are applicable to inputs lying in stock or the inputs which are received in the factory after filing the declaration made under Rule 57G but immediately before obtaining the dated acknowledgement of the declaration. In the present case, the declaration was filed by the appellants in terms of Rule 57G(1) on 14-3-1988. The inputs in dispute were received by them during the period from 27-4-1987 to 29-2-1988, i.e. before the declaration was filed under Rule 57G(1). This being the position, the benefit of Rule 57H(1) cannot be extended to these inputs as those were not received in the factory after filing the declaration." 13. Arguing the case on behalf of the appellant Collector, Shri M.N. Biswas, learned Departmental Representative supported the view taken by the Member (Technical). Proceeding further he contended that the plain meaning of the ex....
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....hat the view expressed by the learned Member (Judicial) following the South Regional Bench decision in 1989 (44) E.L.T. 66 represents the correct view which should prevail and not the contrary view expressed by the learned Member (Technical). The learned counsel, therefore, pleaded that the department's appeal should be dismissed. 16. I have considered the submissions made by both the sides. I have gone through the record. Learned Member (Technical) has held that as the declaration under Rule 57G(1) was filed by the respondents on 14-3-1988 and the inputs had been received by them during the period from 27-4-1987 to 29-2-1988 before the filing of the declaration on 14-3-1988, the benefit of Rule 57H(1) cannot be extended to these inputs as they were not received in the factory after filing the declaration. This conclusion that the benefit of Rule 57H(1) cannot be extended to the inputs in question as they were not received in the factory after filing the declaration directly conflicts with the said provision since it specifically provides that Assistant Collector may allow credit of duty paid on inputs received by a manufacturer immediately before obtaining the dated acknowledge....
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....ts received earlier but lying in stock with the manufacturer would not get the benefit. This incongruity is, I submit with respect, more apparent than real. As long as duty on the inputs is paid after 31-1-1986, the date of manufacture or even the date of payment of duty on the inputs lose their significance and the decisive factors will be the date of receipt and the date of declaration, subject to the Transitional Provisions in the shape of Rule 57H. This question apart, I, however, respectfully follow the decision of the South Regional Bench in the light of the interpretation of the provisions of Rule 57H(1) as a whole. Under Rule 57H(1), credit of duty paid on inputs received by a manufacturer immediately before obtaining the dated acknowledgement of the declaration under Rule 57G may be allowed by the Assistant Collector if he is satisfied that such inputs are lying in stock or had been received after filing the said declaration or such inputs are used in the manufacture of final products cleared on or after 1-3-1987. If, as urged in the appeal, credit is limited to the inputs received last before obtaining the dated acknowledgement of the declaration, the necessity to lay dow....
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....r (Judicial) and respectfully following the South Regional Bench decision in the Soft Beverages case, I would like to observe that the above interpretation of the expression "immediately before" which is in consonance with the rest of the provisions of the said Rule 57H(1) cannot, however, be on the analogy of the judicial pronouncements cited in the Soft Beverages case. The scope of the same expression occurring in the other provisions turned on the language employed therein and was to apply to the situations covered therein. The same does not automatically apply to the present situation. The enactments therein were not in pan materia with Rule 57H. In Nandy Chowdhury v. H.C. Dutta (1967) 71 CWN 681, it was held that the expression held immediately before date of vesting meant that lease must be subsisting on the date of vesting. This provision is not in pan materia with Rule 57H(1) and the scope of the expression "immediately before" occurring in the latter provision cannot be determined on the strength of this decision. In the Kanhaiyalal Bhargava case, the question was about dividend which was defined to include any distribution made to the shareholders of a company on its liqu....