TaxTMI 
TaxTMI 
2011 (2) TMI 752
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....21457 dated 08/06/1989 wherein M/s. Central Cables (P) Ltd, the appellant and the three job-workers, namely, Omega Scientific, Vidharbha Cables and Central Capacitors Co. Pvt. Ltd. were made parties. The allegation in the show-cause notice was that the assessee was procuring copper and aluminium products falling under Chapter 74 and 76 of the Central Excise Tariff Act, 1985 on payment of duty as inputs and the goods, which were received in their own name, were transferred to the three job-workers by endorsing the concerned gate passes without accounting for the same in the statutory RG23A Part I and II register and making entries of these goods in the private store accounts. The job-workers, who received these goods, took credit....
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.... fully covered under the scope of Rule 57F(2) of the Central Excise Rules, 1944 read with Notification 214/86 dated 02/04/1986 and hence the higher notional credit taken by the assessee under Rule 57B was not permissible for such transactions because, they were sending their own goods for job-work and receiving them back and the ownership never changed hands. Accordingly, the adjudicating authority confirmed an amount of Rs. 16,44,436=91 short-paid/excess credit taken under Section 11A of the Central Excise Act, 1944. He imposed a penalty of Rs. 1.5 lakhs on the assessee under Rule 173Q and penalty of Rs. 25,000/- each on the three job-workers under Rule 173Q read with Rule 209A of the Central Excise Rules, 1944. 3. The lear....
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....en in a case where the raw material supplier paid wages to the people who actually undertook the manufacturing operation. The learned counsel for the assessee also relies on the judgment of the Bombay High Court in the case of Impact Containers Pvt. Ltd. vs. Asstt. Collector of Central Excise, Bombay 1996 (85) ELT 213 wherein the issues were identical. In the said case, the appellants therein had supplied aluminium ingots directly to the job-workers and got plain aluminium tubes manufactured by them and the job-workers took credit of the duty paid on the aluminium ingots and discharged duty liability on the plain aluminium tubes. Thereafter, the appellant in that case, undertook manufacture of lacquered printed aluminium tubes b....
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.... would submit that Rule 57F(2) was mandatory and the assessee should have followed the said procedure and should not have availed the modvat credit at a higher rate as provided for in Rule 57B read with Notification 175/86 as amended, even though the duty liability was discharged at a lower concessional rate by the job-workers under Notification No. 175/86 as amended. He also relied upon the decision of the Tribunal in the case of Modi Rubber Ltd. vs. Collector of Central Excise, Meerut 1998 (100) ELT 142. In the said decision, this Tribunal has held that the Notification No. 175/86-CE has been issued under Rule 8(1) and not under Rule 57A of the Central Excise Rules, 1944, and non-obstante clause in Rule 57B does not extend to Notifi....
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.... cannot be forced to avail the benefit of Notification No. 214/86 and the choice is with him in regard to availment of the benefit of Notification. Similarly, the Hon'ble Bombay High Court in the Impact Containers Pvt. Ltd. case (supra) has clearly held that Rule 57F(2) is only a facility and it cannot be forced upon every manufacturer and it is the manufacturer who has to decide whether he wants to follow such a procedure or he wants to avail the benefit of modvat facility under Rule 57A. This position was also confirmed by the Central Board of Excise & Customs in their letter dated 17/10/1988 to the All India Manufacturers Organisation wherein it was made clear that it was entirely the option of the assessee whether to avail of the ....