TaxTMI 
TaxTMI 
2008 (11) TMI 270
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....r produced prior to 16-12-1998, and cleared on or after that date. It appears that in respect of the goods manufactured prior to 16-12-1998 the petitioner was not allowed to avail Modvat credit. Thereafter writ petition was filed before this Court, which came to be allowed vide judgment dt. 22-8-2001 [2002 (142) E.L.T. 42 (Raj.)], copy whereof has been produced as Annexure-A. A perusal of that judgment shows, that thereby four writ petitions were decided, including that of the petitioner, wherein relying upon the judgment of the Hon'ble Supreme Court in Eicher Motors Ltd. v. Union of India reported in 1999 (106) E.L.T. 3 (S.C.) = (1999) 2 SCC 361, it was found, that once the capital goods which have already been utilised, and the credit has been received against their utilisation, then Clause 5 cannot be given retrospective effect, so as to nullify the Modvat credit, which has already been earned by the individual writ petitioner, and that, even Clause 6 of the notification clearly provides a nonobstante clause to the effect, that nothing contained in the notification shall apply to any goods manufactured or produced prior to 16-12-1998, and cleared on or after that date. Consequen....
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....nted out by the adjudicating authority, and that, the High Court had given the judgment under the impression, that the appellants were in a position to utilize the credit, since the scheme of compound levy had been withdrawn w.e.f. 1-3-2001. The fact that another optional scheme of compound levy was in place, with effect from 28-6-2001, and the appellants would be utilizing the credit under the new scheme, was neither placed before the Court, nor seems to be the intention behind the said judgment, and thus, the appeal was dismissed. 7. Then, the matter was carried further in appeal before the Tribunal, and the Tribunal by the impugned order has again dismissed the appeal. The Tribunal has quoted the portion of the scheme, so also portion of the order of the Commissioner, and then proceeded to refer to judgment of the Hon'ble Supreme Court, in CCE v. Venus Castings (P) Ltd. reported in 2000 (117) E.L.T. 273, which held, that an assessee cannot have a hybrid procedure, of combining the procedure under Rule 96ZO(1) and Rule 96ZO(3). Then, the Tribunal also referred to another judgment of the Tribunal, in Mohinder Steels Ltd. v. CCE, Chandigarh, reported in 2002 (145) E.L.T. 290, wher....
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....t had exercised option, he could not avail the Modvat credit, and since he had still availed it, and therefore, action taken has rightly been taken against him, and has rightly upheld by the CESTAT. 10. We have considered the submissions. 11. Before proceeding further, we may gainfully quote sub-paras 5, 6 and 7 of Para-8 of the notification no. 32/2001, the most relevant provisions for the present purpose. They read as under :- "(5) The independent textile processor opting for the provisions of this notification shall not be eligible to avail of any credit of duty paid on inputs or capital goods under the CENVAT Credit Rules, 2001. (6) The provisions of this notification shall apply to the said goods which are manufactured or produced on or after the 1st day of May, 2001. (7) Nothing contained in this notification shall apply to:- (a) the said goods which are manufactured or produced prior to the 1st day of May, 2001 and cleared on or after that date; (b) a composite mill, that is, a manufacturer or processor, who is engaged in the processing of fabrics with the aid of power along with the spinning of yarn from fibres and weaving or knitting or crocheting of fabrics within ....
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....pital goods under the CENVAT Credit Rules, 2001. This language is wide of course, and is attempted to be interpreted by the learned counsel for the Revenue, that the use of word "any credit of duty paid or inputs of capital goods" includes the credit already earned by the assessee, and he cannot be said to be eligible to avail the same. Then, a reading of sub-paras (6) & (7) makes the thing further clear, inasmuch as by sub-para (6) it is provided, that the provisions of this notification shall apply to the said goods which are manufactured or produced on or after the 1st day of May, 2001. While sub-para (7) further clarifies, that nothing contained in this notification shall apply to the said goods which are manufactured or produced prior to the 1st day of May, 2001, and cleared on or after that date. 16. It is required to be comprehended, that in a given situation, where the assessee has acquired the right to get Modvat/Cenvat, on the goods manufactured prior to 1-5-2001, even per force this notification no. 32/2001, the assessee would be entitled to claim that on or after said date. But then the notification does not contemplate the forfeiture of the right of the assessee to cl....