Customs, Excise and Gold Tribunal - Calcutta
Commissioner Of Central Excise vs Maithan Ceramics Ltd. on 25 November, 2005
Equivalent citations: 2006(104)ECC484, 2006ECR484(TRI.KOLKATA)
ORDER V.K. Jain, Member (T)
Page 485
1. This is an appeal filed by the Revenue against the Order-in-Appeal No. 28/RAN/CEX/APPEAL/2004 dated 23.1.2004 passed by Commissioner (Appeals), Central Excise, Ranchi. The duty involved in this case is Rs. 8,47,729.00 (Rupees eight lakh forty-seven thousand seven hundred and twenty-nine) and the amount of penalty imposed is Rs. 10,000.00 (Rupees ten thousand).
2. The lower authority disallowed the MODVAT Credit of Rs. 8,47.729.00 (Rupees eight lakh forty-seven thousand seven hundred and twenty-nine) in terms of Rule 57H of the erstwhile Central Excise Rules, 1944 and imposed a penalty of Rs. 10,000.00 (Rupees ten thousand) on the respondent company, which the Commissioner (Appeals) has set aside. Brief facts of the case is as follows:
1.1. The respondent company took MODAT Credit of Rs.8,47,729.00 (Rupees eight lakh forty-seven thousand seven hundred twenty-nine) on 29.6.2000 Page 486 on the strength of the Supplementary Invoice No. 270 dated 29.6.2000 issued by M/s. Maithan Mineral (P) Ltd, Chirkunda in the light of pament of Central Excise duty, consequent upon Order No. 110/DC/99 dated 5.11.99 of the concerned Deputy Commissioner, Central Excise, Dhanbad. The Credit was denied by the adjudicating authority in the impugned Order-in-Original dated 22.3.2002 on the ground that the said invoice was not "Supplementary Invoice", as no additional amount of duty had been paid by the supplier. The adjudicating authority also observed that Credit on the strength of Supplementary Invoice was provided in the Central Excise Rules vide Notification No. 51/2000 dated 29.8.2000 but Credit was taken before 29.8.2000.
1.2 Being aggrieved with the Order-in-Original, the respondent company had filed an appeal before the Commissioner (Appeals) who had set aside the Order passed by the lower authority, and hence this appeal by the Revenue before this Tribunal. 2. Heard Sri A. Raha, learned S.D.R. for the Revenue who has reiterated the grounds taken in the appeal filed by the Revenue.
3. None is present for the respondent company.
4. I have perused the records and considered the submissions made by the learned S.D.R. for the Revenue. I find in the instant case that the input-supplier factory namely, M/s. Maithan Mineral Pvt. Ltd., Chirkunda submitted a Classification List claiming their product under Heading 2505.00 attracting nil rate of duty whereas the Department classified the product under Heading 2617.00 attracting duty at the rate of 8% adv. Thus I find that the classification dispute was finalised, vide Order-in-Original No. 110/DC/99 dated 5.11.99. I agree with the Commissioner (Appeals) who has observed to the effect that the if Classification List/Price List is submitted by the assessee but approved by the Department later, then the clearance made in the meantime has to be deemed provisional even if B-13 Bond is not executed, as is laid down by the Honourable Apex, Court in the case of Samrat International (P) Ltd. v. C.C.Ex. . In view of this, if in the instant case the Credit in question was taken by the assessee on or after 29.8.2000, then it is perfectly in order.
4.1. The Commissioner (Appeals) has observed that in the case of Eicher Ltd reported in 2003(58) RL-64(T), the Tribunal has held that the Notification No. 51/2000-CE(NT) dated 29.8.2000 is clarificatory in nature and gave its benefit with retrospective effect. In view of the above decision, I do not find any infirmity in the Order passed by the Commissioner (Appeals). I reject the appeal filed by the Revenue