TaxTMI 
TaxTMI 
TaxTMI 
2009 (3) TMI 90
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....d 27/08/1996? 2. Whether the question of law about the legal competence of Superintendent Central Excise to issue Show Cause Notice (herein after referred as SCN) for disallowance of Modvat Credit and consequently of the jurisdiction of Adjudicating Authority over the matter (which depended on legality & validity of SCN) was legally permissible to be raised in the hearing dated 21/03/2003 of the Appeals before CESTAT? 3(a) Whether the directions by the CESTAT vide its order No. A/922/2000-NB dated 19/10/2000, to Commissioner C. Excise Meerut to decide the admissibility of and to re-quantify the credit allegedly availed beyond the period of six months from the date of duty paying documents of inputs in terms of its ruling in Kusum Ingots Case 2000 (120) ELT-214 excluded the application of the Hon'ble Supreme Courts ruling in Eicher Motors Case, 1999 (106) E.L.T. -3 (S.C.)? i.e. Whether right to credit under Modvat Scheme, as it stood on 29/06/1995 "accrued to assessee on the date when they paid tax on raw materials and inputs" (as held by Supreme Court in Eicher Motors case) and whether the act of making entry of receipt of such inputs in part-I of the single comprehensive RG-23A....
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....edings, the Adjudicating Authority vide order dated 30.09.2002 besides disallowing credit amounting to Rs. 6,01,928/- on documents over six months old, also disallowed Cenvat credit amounting to Rs. 1,98,626/- on Sulpuric Acid Gas analyzer and Transmitter and Cenvat Credit amounting to Rs. 1,26,862/- on the Appellant under Rule 173 A (1) (bb) of the Central Excise Rules, 1944. The Assessee again filed appeal before the Tribunal and the Tribunal vide impugned order No. A/167-168/03-NB-C dated 21.03.2003 set aside the order passed by Adjudicating Authority on the ground that the order was beyond the scope of remand order and matter was again remanded to the Adjudicating Authority for requantification of amount of credit to be disallowed. 4. Discussions and decision on the questions referred:- Shri Z.U. Alvi, learned counsel for the assessee drew attention of this Court to circular letter No. F 267/104/87-CX .8, dated 15.12.1987, and argued that the Central Board of Excise and Customs, New Delhi, has expressly made clear that the show cause notices are required to be issued for disallowing Modvat credit by Assistant Collectors (now Assistant Commissioners). In this connection, our a....
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....circular letter No. 3/92-CX 6, dated 14.05.1992 is concerned, it is also silent as to who can issue notice. The relevant rule applicable to the case is sub-rule (1) of Rule 57-I of Central Excise Rules, 1944, which reads as under:- "Rule 57-I. Recovery of credit wrongly availed of or utilised in an irregular manner- (1) (i) Where credit of duty paid on inputs has been taken on account of an error, omission or mis-construction, on the part of an officer or manufacturer, or an assessee, the proper officer may, within six months from the date of filing the return required to be submitted in terms of sub-rule (4) of rule 57G, and where no such return as aforesaid is filed, within six months from the last date on which such return is to be filed under the said rules, serve notice on the manufacturer or the assessee who has taken such credit requiring him to show cause why he should not be disallowed to such credit and where the credit has already been utilised, why the amount equivalent to such credit should not be recovered from him: Provided that where such credit has been taken by reason of fraud, wilful mis-statement, collusion or suppression of facts, or contravention of any....
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....d by Superintendent Central Excise, in the present matter. Also, perusal of reply to show cause notice given by the assessee, further shows that the assessee has nowhere objected to the competence of the issuing authority (Superintending Central Excise). Apart from this, since all the objections raised by the assessee are considered by the competent adjudicating authority as such, no prejudice appears to have been caused to the assessee. As such, the questions No. 1 and 2 referred stand answered. 5. Learned counsel for the assessee drew attention of this Court to the case of Eicher Motors Ltd. Vs. Union of India 1999 (106) E.L.T. 3 (S.C.) and argued that under the Modvat Scheme, the right to credit become absolute when input is used in the manufacture of the final product. In this connection, it is further contended that once on the inputs, the assessee has already paid the taxes on the goods utilised in manufacture of further products, as inputs then the tax on these goods gets adjusted, which are finished subsequently. As such, the right accrued to the assessee on the date when they paid the tax on the raw materials or the inputs continues until the facility is available u....