2005 (3) TMI 109

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....ral Excise Rules, 1944?" 2. Heard the learned counsel for the parties. 3. The assessee M/s. Chemplast and Plastics India Limited, Mettur Dam is the manufacturer of various inorganic and organic chemicals falling under Chapters 28 and 29 respectively of the Schedule to the Central Excise Tariff Act, 1985. The assessee is manufacturing chlorine falling under sub-heading No. 2801.10 of Schedule to the aforesaid Act, and a portion of the chlorine so manufactured is being removed for the manufacture of Hydrochloric Acid classifiable under sub-heading No. 2806.10 of the said Act, and exemption in respect of chlorine has been claimed as per Notification No. 40/85-C.E., dated 17-3-1985 as amended. 4. A portion of the Hydrochloric Acid so manufac....

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....acid are different excisable commodities and either one of them has to suffer duty, and both cannot be cleared free of duty. Against the said order, the assessee filed an appeal before the Commissioner of Customs and Central Excise (Appeals), who confirmed the order of Assistant Collector of Central Excise. But on further appeal, the CEGAT, Chennai set aside the orders and remanded the matter to the Assistant Commissioner for fresh adjudication relying on its earlier judgment in the assessee's own case reported in 2000 (124) E.L.T.1103. M that decision, the Tribunal had noted that the assessee was not pressing for the benefit of exemption under Notification No. 40/85, but had claimed Modvat credit on duty paid on chlorine and for this purpo....

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....nsel for the assessee has not contested the eligibility to Modvat credit on merits, but has only disputed the procedural aspect. The only controversy in the present case is whether Modvat credit can be allowed at a subsequent date when it is found that the duty is payable on an intermediate product, without the procedure having been followed at the material time for availment of Modvat credit on such an intermediate product. 8. Learned counsel for the assessee invited our attention to the decision of the Supreme Court in Formica India Division v. Collector of Central Excise, 1995 (77) E.L.T. 511 (vide paragraph-2), in which the supreme Court observed:- "The circumstances in which the appellants did not pay the duty on the intermediary pro....