TaxTMI 
TaxTMI 
1994 (6) TMI 76
X X X X Extracts X X X X
X X X X Extracts X X X X
....erstwhile Central Excise Tariff and were availing proforma credit/set off of countervailing duty paid on imported raw materials used in the manufacture of the final products in terms of Rule 56-A of the Central Excise Rules, 1944. The appellants received two consignments of Vulkacit-MBTS (Rubber Accelerators) from M/s. Sun Export Corporation, Bombay on 3-4-1985 and 8-7-1985 which were sold to the appellants on High Seas Sale basis. D-3 Intimation No. 474 dated 3-4-1985 and No. 602 dated 8-7-1985 were filed by the appellants for the material. Vide letter dated 26-7-1986, the appellants forwarded the relevant documents viz. Bills of entry, Bill of lading, invoice and Clearing agent's bill etc. stating that Proforma credit could not be availed....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hin one month of D-3 intimation but were only submitted after a delay of 18 months and the bill of entry relates to M/s. Sun Export Corporation which was retransferred from M/s. Dunlop India Limited and was not retransferred in favour of the appellants. The lower Appellate authority rejected the appeal on the ground that the appellants had failed to comply with the statutory requirements of law and therefore, delay could not be condoned. Hence this appeal. 4. Shri V. Sridharan, learned Advocate for the appellants, contends that under the provisions of Rule 56A, credit of duty paid on inputs is permitted on production of the original duty paying documents covering the materials and no time-limit is prescribed therein for the same. The ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the Hon'ble Gujarat High Court in the case of Wipro Ltd. v. UOI , reported in 1992 (60) E.L.T 370 (Guj.) in support of his contention that the limitation provided in Section 11B, CESA, 1944 would be attracted and hence, the claim of the appellants is time barred. In Rejoinder, ld. counsel relies upon the judgment of the Tribunal in the case of Kothari Chemical & Industries v. CCE [1989 (44) E.L.T. 560] which according to him is applicable to the facts of this case. 6. On considering the submissions of both sides and perusing the records, we find that the basic objection of the Department is that duty paying documents have been submitted after about 18 months while as per the Trade Notice dated 3-12-1984 of the Meerut Collectorate, t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ts evidencing payment of duty of excise have not been received, the proper Central Excise Officer shall nonetheless verify the goods on receipt of the D-3 intimation. Such verifications shall also be done in respect of cases where the D-3 intimation regarding the documents evidencing payment of duty of excise. After such verification, the assessee may be permitted to utilise the goods but credit of duty paid on the goods would be permitted to be utilised only as and when the documents evidencing the payment of duty of excise are produced to the satisfaction of the proper officer." 7. In the present case, the appellants have not taken credit on their own nor have they utilised it but have sought permission from the authorities by their....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt pass has to accompany the raw material. The claim that this provision is mandatory is belied by the existence of two trade notices - one each of the Hyderabad and Madras Collectorates. These notices specifically provide that the goods can be brought under the cover of an invoice and the duty paying documents such as gate pass or certificate, can be submitted within 15 days or one month from the date of arrival of the goods in the factory. This itself would show that the requirement regarding production of gate pass is procedural in nature. If identity of the goods could be established - without the gate pass or the certificate of payment of duty, the presentation of such a document at a later date does not in any way affect the minimum c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e notification itself imposes the condition that credit shall be taken only on the date on which oil has been hydrogenated and that credit shall be utilised after the commencement of the next calendar month. In the present case, the appellants have staked their claim for the benefit of proforma credit within time by filing the D-3 intimations. This is over and above the general permission already obtained under Rule 56A(2). Therefore, the subsequent delay in filing the duty paying documents cannot operate against the appellants. In the case of Kothari Chemicals & Industires v. CCE [1989 (44) E.L.T. 560], the Tribunal has held as follows :- "We observe that the appellants had placed all the facts regarding their manufacture before the Centr....