Customs, Excise and Gold Tribunal - Bangalore
Mysore Polymers vs Cce on 15 September, 1999
Equivalent citations: 2000(91)ECR198(TRI.-BANGALORE)
ORDER S.L. Peeran, Member (J)
1. This appeal arises from Order-in-Appeal No. 71/91 dated 12.3.1991 passed by the Commissioner (Appeals), Bangalore, upholding the Order-in-Original passed by the Assistant Commissioner rejecting the plea of the appellants for utilising the non-utilised balanced credit lying in RG 23 account as on 01.3.1986 in terms of Notification No. 201/79.
2. The short question that arises for consideration in this appeal is that on the date of rescinding of Notification No. 201/79, the appellants had unutilised credit of Rs. 51,801.24 in their RG 23 account. They had requested the Assistant Commissioner for granting permission to avail unutilised credit on the ground that by virtue of Notification No. 225/86 as amended by Notification No. 338/86 dated 11.6.1986, they are eligible to set off of duty paid on veneers for manufacture and clearance of final product i.e. Densified Wood and requested that the unutilised credit in RG 23 account be allowed to be utilised. The authorities have taken a view that the appellants had been availing set off of duty under Notification No. 201/79 in the erstwhile Tariff 16B, which was changed to new Heading 4409 from 01.3.1986. It has been held that Notification No. 201/79 was rescinded by Notification No. 186/86 dated 1.3.1986 and therefore, they are not entitled for the unutilised benefit lying in RG 23 account.
3. The appellants are not present, despite notice.
4. Heard learned DR in the matter.
5. On a careful consideration of the submissions, we notice that the Hon'ble Apex Court in the case of Etcher Motors Ltd. v. UOI as , have taken a view that right accrued to an as-sessee to availability of scheme, alteration cannot be taken away. It has been held that when on the strength of the rules available certain acts have been done by the parties concerned, incidence following thereto must take place in accordance with the scheme under which the duty had been paid on the manufactured products. It has been held after a detailed discussion that the right to the credit has become absolute at any rate when the input is used in the manufacture of the final product. It has been observed that the basic postulate, that the scheme is merely being altered and, therefore, does not have any retrospective or retroactive effect, submitted on behalf of the State and that submission has not been accepted by the Apex Court. The Apex Court further observed that when on the strength of the rules available certain acts have been done by the parties concerned, incidence following thereto must take place in accordance with the scheme under which the duty had been paid on the manufactured products and if such a situation is sought to be altered, necessarily, it follows that right, which had accrued to a party such as availability of a scheme is affected and in particular, it loses sight of the fact that provision for facility of credit is as good as tax paid till tax is adjusted on future goods on the basis of the several commitments which would have been made by the assessees concerned. Therefore, the Apex Court observed that the scheme "MODVAT" sought to be introduced cannot be made applicable to the goods which had already come into existence in respect of which the earlier scheme was applied under which the assessees had availed of the credit facility for payment of taxes. It has been further held that it is on the basis of the earlier scheme necessarily the taxes have to be adjusted and payment made complete and any manner or mode of application of the said rule would result in affecting the rights of the assessees. In effect, it has been held that the right accrued to the assessee on the date when they paid the tax on the raw materials or inputs and that right would continue until the facility available thereto gets worked out or until those goods existed.
6. In view of the above Judgment of the Hon'ble Apex Court, the appellants appeal is required to be accepted by setting aside the impugned order which we order accordingly.
7. The appeal is allowed.
(Pronounced and dictated in the open court).