2013 (11) TMI 1529

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....hese appeals are interlinked, they are taken up together for consideration. 3. The appellant Piramal Healthcare Ltd., earlier known as Nicholas Piramal (India) Ltd., is a manufacturer of Vitamin A falling under Chapter 29 and Animal Feed Supplement falling under Chapter 23 of the Central Excise Tariff Act, 1985. During the process of manufacture, an intermediate product called Crude Vitamin A arises. Crude Vitamin A used in the manufacture of Vitamin A was exempt from payment of duty under Notification 67/95-C.E. and the appellant was not required to pay any duty on Crude Vitamin A. The appellant was also not paying duty on Crude Vitamin A used in the manufacture of Animal Feed Supplement which attracts 'nil' rate of duty on the gro....

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....s to be reduced by Rs. 5,84,190/- and therefore the total duty demand that should have been confirmed should only be Rs. 1,83,26,771/- as against Rs. 1,89,10,961/-. Aggrieved from these orders, the appellants are before us. 4. The ld. Counsel for the appellant submits that as regards order dated 28-2-2005 the duty demand shall be reduced by Rs. 5,84,190/- and the balance amount of demand of Rs. 1,83,26,771/- only needs to be confirmed. Taking into account the payment of Rs. 1,49,64,096/- which has already been appropriated, the amount pending payment is only Rs. 33,62,675/-. As against the payment of Rs. 1,26,51,567/- confirmed vide Order dated 29-4-2011 an amount of Rs. 28,24,993/- has already been appropriated. Thus the balance am....

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....firmed later, the appellant should be allowed to set off the demand against the lapsed credit and the same ratio would apply to the facts of the present case also. He also relies on the decision of the Apex Court in the case of Eicher Motors Ltd. - 1999 (106) E.L.T. 3 (S.C.) wherein it was held that the right to adjustment of tax on the final product accrued to the assessee on the date when they paid tax on the raw materials or the inputs and that right would continue until the facility available thereof gets worked out or until those goods existed. It was further held that in the said judgment that Section 37 of the Central Excise Act, 1944 does not enable the authorities concerned to frame rules enabling lapsing of the balance in Modvat c....

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.... in the case of Nebulae Health Care Ltd. (supra), this Tribunal held that if the liability is for the period before the lapsing of the credit though determined after the date of lapsing, it is only proper that a set off on account of lapsed credit is given because if such liability was determined correctly during the relevant time, the credit would have been available for discharging such liability. 8. In the present case, it is not in dispute that the impugned demands pertain to the period prior to 1-3-1997 and the credit was sought to be lapsed as on 1-3-1997. If the demands had been confirmed earlier, that is, prior to 1-3-1997, the appellant would have been eligible for setting off the credit against the duty liability. Merely b....