Customs, Excise and Gold Tribunal - Delhi
Commissioner Of C. Ex. vs Parasrampuria Synthetics Ltd. on 31 July, 1998
Equivalent citations: 2000(116)ELT581(TRI-DEL)
ORDER J.H. Joglekar, Member (T)
1. The assessees imported goods and took the Modvat credit of the CV duty paid. The rate of the CV duty initially was shown as 20% which was later corrected on the original and duplicate copies of the bill of entry as 30% and the duty was calculated and paid accordingly. On the triplicate copy however these corrections were not incorporated. Therefore although the duty was paid at the rate of 30% the credit taken by the assessee was a sum calculated at the rate of 20%. The duty was paid on 8-6-1995 and the credit was taken on 20-6-1995. Later when the assessees realised their error, they took the differential credit on 24-5-1996. The Assistant Collector after issue of show cause notice denied the differential credit later taken, citing the provisions of Rule 57G(2) as amended by Notification No. 28/95-C.E. (N.T.), dated 29-6-1995. He also rejected the arguments of the assessee to the effect that the additional credit taken by them was in the nature of variation of credit under Rule 57. The assessees then filed an appeal. The Collector relying upon the ratio of the Tribunal judgement in the case of C.C.E., Bhubaneshivar v. Konark Cylinders & Containers (P) Ltd. reported in 1994 (73) E.L.T. 702 (Tribunal) held that credit once taken did not disentitle the assessee from taken additional credit. He held that the right conferred on the assessee to avail the credit could not be taken away when the claim was duly supported by duty paying documents. Against this finding of the Commissioner, the Revenue have filed this appeal.
2. Shri Y.R. Kilania, learned DR submits that the cited judgement dealt with the issue of deemed credit and the ratio thereto did not apply to the facts of the case. It was claimed that the restriction incorporated in Rule 57G(2) could not circumvented by the Collector. On these twin grounds he seeks reversal of the decision of the Commissioner. Shri K.K. Anand, learned Advocate submits that the principles laid down in the Konark Cylinders & Containers (P) Ltd. judgement did not limit to the situation where deemed credit was available but is of universal application. He submits that when the credit was initially taken the limitation of six months had not been incorporated in the rule. Citing the judgement in the case of Tata Engg. Locomotive Co. v. Collector of Central Excise, Bombay, reported in 1996 (87) E.L.T.157 (Tribunal) he claimed that the provisions could not be retrospectively applied.
3. I have carefully considered the rival claims made.
4. The provision that credit has to be taken within six months of the date of eligible documents was incorporated in the Act only from 29-6-1995. The credit on the Bill of Entry was taken earlier. However, the amount of credit taken was less than what was permissible. When the assessee took credit later of the differential amount, it was in the nature of correction of a mistake and the action could not be called as of taking of credit. Therefore, the existence of the debarring provisions on the date which the differential credit was taken did not bar the taking of such credit.
5. I have carefully perused the Konark Cylinders & Containers (P) Ltd. judgement on which reliance was placed by the Commissioner which reliance has been questioned by the Revenue. It is correct that the Tribunal were dealing with the situation where the assessee had initially taken deemed credit and later on duty paying documents being available sought to take higher credit. The Tribunal observed that there was nothing in the provisions that would deny the difference between the two credits being taken by the assessee provided it was supported by a valid document. The judgement lays down a principle which is of application in similar cases, even if the cases fall under other rules.
6. In this case it has to be held that when the initial credit taken was within the prescribed period, the additional or differential credit being taken later (even wherein doing so the assessee had crossed the limit specified in the condition), the bar created by the amended rule would have no application.
7. I find that the Commissioner's order is legal. The same is upheld. This appeal is dismissed.