Customs, Excise and Gold Tribunal - Calcutta
M/S. I.T.C. Limited (Tribeni Tissues ... vs C.C.E., Calcutta-Iv on 28 May, 2001
ORDER
Archana Wadhwa
1. Vide impugned order the authorities below have confirmed the demand of duty of Rs.1,71,246.00 (Rupees one lac seventy one thousand two hundred forty six only) and imposed penalty of Rs.1,000/- (rupees one thousand only).
2. Arguing on the appeal Shri J.P. Khaitan, learned Advocate submits that a substantial amount of Modvat credit (approximately to the tune of Rs.1.10 lac) was availed by them prior to 29.6.95 when the amendment to the provisions of Rule 57G(2) was made by Notification No. 28/95-CE (NT) dated 29.6.95 restricting the time-limit for the purposes of availing the Modvat credit within six months from the date of issuance of the document. He submits that after taking of credit, some procedural irregularities were pointed by their jurisdictional Superintendent of Central Excise and the credit was debited by them. The irregularities were got rectified by them and after rectification, the credit was again taken after 29.6.95. He submits that as the credit was originally taken before 29.6.95, the provisions of amended Rule 57G(2) would not apply to them. In any case, he submits that even in respect of the balance amount of Modvat credit, since the invoice were issued before 39.6.95 and the entries were made in RG-23A Part I before the said date, the restriction of time-limit of six months is not applicable to them. He submits that it has been held by the Tribunal in a number of cases that the amendment brought in Rule 57G(2) will operate only with effect from 39.6.95 inasmuch as the same is not clarificatory and hence not retrospective in effect. However he fairly concedes that now the Larger Bench decision of the Tribunal vs. C.C.E., Indore reported in 2000 (120) ELT 214 (Tribunal-LB) has held that credit, even in respect of invoice issued prior to 29.5.95, is required to be taken within period to six months of issuance of duty paying document. I have also heard Shri. A.K. Chattopadhaya, learned JDR for the Revenue.
3. As regards the amount of credit of Rs.1.10 lac (approx) is concerned I find that the credit was availed by the appellants within period of six months from the date of issuance of the invoice in question. The subsequent developments of debit of the said credit, rectification of the invoice and recredit of the same in appellant's RG-23A part I at the instance of the revenue would not disentitle them to the Modvat credit of duty originally taken by them in accordance with law. As such I hold that appellants would be entitled to the said amount of credit.
4. As regards the balance amount, since the issue stands decided against the appellants by the Larger Bench decision referred supra, following the ratio of the same I do not find any merit in the appellant's case and confirm the said amount of credit rejected by the authorities below. However I set aside the quantum of personal penalty of Rs.1000/- (rupees one thousand only) as the issue was debatable and the earlier decision were in favour of the appellant. Appeal is disposed of in the above terms.
(Dictated & pronounced in Court)